exv10w1






Exhibit 10.1




EXECUTION VERSION







CREDIT AGREEMENT




Dated as of June 30, 2011



among



ALERE INC.,

as Borrower,




THE LENDERS AND L/C ISSUERS PARTY HERETO



GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent



JEFFERIES FINANCE LLC,

as Syndication Agent




and




CREDIT SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA and SUNTRUST BANK

as Co-Documentation Agents



ttt 




JEFFERIES FINANCE LLC, GE CAPITAL MARKETS, INC., CREDIT SUISSE SECURITIES

(USA) LLC and GOLDMAN SACHS BANK USA,



as Joint Lead Arrangers and Bookrunners














 





	 	 	 	 	 

	ARTICLE I Definitions, Interpretation and Accounting Terms
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Defined Terms
	 	 	1	 
	Section 1.2 UCC Terms
	 	 	45	 
	Section 1.3 Accounting Terms and Principles
	 	 	45	 
	Section 1.4 Payments
	 	 	46	 
	Section 1.5 Interpretation
	 	 	46	 
	 
	 	 	 	 
	ARTICLE II The Facilities
	 	 	47	 
	 
	 	 	 	 
	Section 2.1 The Commitments
	 	 	47	 
	Section 2.2 Borrowing Procedures
	 	 	48	 
	Section 2.3 Swing Loans
	 	 	49	 
	Section 2.4 Letters of Credit
	 	 	50	 
	Section 2.5 Reduction and Termination of the Commitments
	 	 	52	 
	Section 2.6 Repayment of Loans
	 	 	53	 
	Section 2.7 Optional Prepayments
	 	 	56	 
	Section 2.8 Mandatory Prepayments
	 	 	57	 
	Section 2.9 Interest
	 	 	58	 
	Section 2.10 Conversion and Continuation Options
	 	 	59	 
	Section 2.11 Fees
	 	 	60	 
	Section 2.12 Application of Payments
	 	 	61	 
	Section 2.13 Payments and Computations
	 	 	62	 
	Section 2.14 Evidence of Debt
	 	 	63	 
	Section 2.15 Suspension of Eurodollar Rate Option
	 	 	65	 
	Section 2.16 Breakage Costs; Increased Costs; Capital Requirements
	 	 	65	 
	Section 2.17 Taxes
	 	 	67	 
	Section 2.18 Substitution of Lenders
	 	 	70	 
	Section 2.19 Incremental Term Loans
	 	 	71	 
	Section 2.20 Defaulting Lenders
	 	 	74	 
	Section 2.21 Reverse Dutch Auction Repurchases
	 	 	76	 
	 
	 	 	 	 
	ARTICLE III Conditions To Loans And Letters Of Credit
	 	 	78	 
	 
	 	 	 	 
	Section 3.1 Conditions Precedent to Loans and Letters of Credit on the Closing Date
	 	 	78	 
	Section 3.2 Conditions Precedent to Each Loan and Letter of Credit
	 	 	81	 
	Section 3.3 Determinations of Initial Borrowing Conditions
	 	 	81	 
	 
	 	 	 	 
	ARTICLE IV Representations and Warranties
	 	 	81	 
	 
	 	 	 	 
	Section 4.1 Corporate Existence; Compliance with Law
	 	 	81	 
	Section 4.2 Loan Documents
	 	 	82	 
	Section 4.3 Ownership of Group Member
	 	 	83	 
	Section 4.4 Financial Statements
	 	 	83	 
	Section 4.5 Material Adverse Effect
	 	 	84	 
	Section 4.6 Solvency
	 	 	84	 
	Section 4.7 Litigation
	 	 	84	 
	Section 4.8 Taxes
	 	 	84	 
	Section 4.9 Margin Regulations
	 	 	85	 
	Section 4.10 No Burdensome Obligations; No Defaults
	 	 	85	 
	Section 4.11 Investment Company Act
	 	 	85	 
	Section 4.12 Labor Matters
	 	 	85	 






i









 






	 	 	 	 	 

	Section 4.13 ERISA
	 	 	86	 
	Section 4.14 Environmental Matters
	 	 	86	 
	Section 4.15 Intellectual Property
	 	 	87	 
	Section 4.16 Title; Real Property
	 	 	87	 
	Section 4.17 Bank and Security Accounts
	 	 	87	 
	Section 4.18 Insurance
	 	 	87	 
	Section 4.19 Use of Proceeds
	 	 	87	 
	Section 4.20 Full Disclosure
	 	 	88	 
	Section 4.21 Patriot Act
	 	 	88	 
	 
	 	 	 	 
	ARTICLE V Financial Covenants
	 	 	89	 
	 
	 	 	 	 
	Section 5.1 Maximum Consolidated Secured Leverage Ratio
	 	 	89	 
	Section 5.2 Minimum Consolidated Interest Coverage Ratio
	 	 	89	 
	Section 5.3 Capital Expenditures
	 	 	89	 
	 
	 	 	 	 
	ARTICLE VI Reporting Covenants
	 	 	89	 
	 
	 	 	 	 
	Section 6.1 Financial Statements
	 	 	89	 
	Section 6.2 Other Events
	 	 	91	 
	Section 6.3 Copies of Notices and Reports
	 	 	92	 
	Section 6.4 Taxes
	 	 	92	 
	Section 6.5 Labor Matters
	 	 	92	 
	Section 6.6 ERISA Matters
	 	 	92	 
	Section 6.7 Environmental Matters
	 	 	92	 
	Section 6.8 Other Information
	 	 	93	 
	Section 6.9 Delivery of Information to Lenders
	 	 	93	 
	Section 6.10 Annual Lender Call
	 	 	93	 
	Section 6.11 Patriot Act
	 	 	93	 
	 
	 	 	 	 
	ARTICLE VII Affirmative Covenants
	 	 	93	 
	 
	 	 	 	 
	Section 7.1 Maintenance of Corporate Existence
	 	 	93	 
	Section 7.2 Compliance with Laws, Etc.
	 	 	94	 
	Section 7.3 Payment of Obligations
	 	 	94	 
	Section 7.4 Maintenance of Property
	 	 	94	 
	Section 7.5 Maintenance of Insurance
	 	 	94	 
	Section 7.6 Keeping of Books
	 	 	94	 
	Section 7.7 Access to Books and Property
	 	 	95	 
	Section 7.8 Environmental
	 	 	95	 
	Section 7.9 Use of Proceeds
	 	 	95	 
	Section 7.10 Additional Collateral and Guaranties
	 	 	95	 
	Section 7.11 Deposit Accounts; Securities Accounts and Cash Collateral Accounts
	 	 	97	 
	Section 7.12 Credit Rating
	 	 	98	 
	Section 7.13 Postclosing Deliveries
	 	 	98	 
	Section 7.14 Margin Regulations
	 	 	98	 
	 
	 	 	 	 
	ARTICLE VIII Negative Covenants
	 	 	98	 
	 
	 	 	 	 
	Section 8.1 Indebtedness
	 	 	98	 
	Section 8.2 Liens
	 	 	100	 
	Section 8.3 Investments
	 	 	101	 
	Section 8.4 Asset Sales and Stock Issuances
	 	 	102	 






ii









 






	 	 	 	 	 

	Section 8.5 Restricted Payments
	 	 	104	 
	Section 8.6 Payments on Junior Indebtedness
	 	 	105	 
	Section 8.7 Fundamental Changes
	 	 	106	 
	Section 8.8 Change in Nature of Business
	 	 	106	 
	Section 8.9 Transactions with Affiliates
	 	 	107	 
	Section 8.10 Third-Party Restrictions on Indebtedness, Liens, Investments or Restricted Payments
	 	 	107	 
	Section 8.11 Modification of Certain Documents
	 	 	108	 
	Section 8.12 Accounting Changes; Fiscal Year
	 	 	109	 
	Section 8.13 Margin Regulations
	 	 	109	 
	Section 8.14 Compliance with ERISA
	 	 	109	 
	Section 8.15 Hazardous Materials
	 	 	109	 
	 
	 	 	 	 
	ARTICLE IX Events Of Default
	 	 	109	 
	 
	 	 	 	 
	Section 9.1 Definition
	 	 	109	 
	Section 9.2 Remedies
	 	 	111	 
	Section 9.3 Actions in Respect of Letters of Credit
	 	 	112	 
	 
	 	 	 	 
	ARTICLE X The Administrative Agent
	 	 	112	 
	 
	 	 	 	 
	Section 10.1 Appointment and Duties
	 	 	112	 
	Section 10.2 Binding Effect
	 	 	113	 
	Section 10.3 Use of Discretion
	 	 	113	 
	Section 10.4 Delegation of Rights and Duties
	 	 	113	 
	Section 10.5 Reliance and Liability
	 	 	114	 
	Section 10.6 Administrative Agent Individually
	 	 	115	 
	Section 10.7 Lender Credit Decision
	 	 	115	 
	Section 10.8 Expenses; Indemnities
	 	 	115	 
	Section 10.9 Resignation of Administrative Agent or L/C Issuer
	 	 	116	 
	Section 10.10 Release of Collateral or Guarantors
	 	 	117	 
	Section 10.11 Additional Secured Parties
	 	 	117	 
	Section 10.12 Titles
	 	 	118	 
	 
	 	 	 	 
	ARTICLE XI Miscellaneous
	 	 	118	 
	 
	 	 	 	 
	Section 11.1 Amendments, Waivers, Etc.
	 	 	118	 
	Section 11.2 Assignments and Participations; Binding Effect
	 	 	120	 
	Section 11.3 Costs and Expenses
	 	 	123	 
	Section 11.4 Indemnities
	 	 	124	 
	Section 11.5 Survival
	 	 	125	 
	Section 11.6 Limitation of Liability for Certain Damages
	 	 	125	 
	Section 11.7 Lender-Creditor Relationship
	 	 	125	 
	Section 11.8 Right of Setoff
	 	 	125	 
	Section 11.9 Sharing of Payments, Etc.
	 	 	126	 
	Section 11.10 Marshaling; Payments Set Aside
	 	 	126	 
	Section 11.11 Notices
	 	 	126	 
	Section 11.12 Electronic Transmissions
	 	 	127	 
	Section 11.13 Governing Law
	 	 	128	 
	Section 11.14 Jurisdiction
	 	 	128	 
	Section 11.15 Waiver of Jury Trial
	 	 	129	 
	Section 11.16 Severability
	 	 	129	 






iii









 






	 	 	 	 	 

	Section 11.17 Execution in Counterparts
	 	 	129	 
	Section 11.18 Entire Agreement
	 	 	129	 
	Section 11.19 Use of Name
	 	 	129	 
	Section 11.20 Non-Public Information; Confidentiality
	 	 	130	 
	Section 11.21 Patriot Act Notice
	 	 	130	 
	Section 11.22 Senior Indebtedness.
	 	 	130	 











iv









 








SCHEDULES




	 	 	 	 	 

	Schedule I

	 	—
	 	Commitments
	Schedule II

	 	—
	 	Addresses for Notices
	Schedule 1.1(a)

	 	 	 	Inactive Subsidiaries
	Schedule 2.21

	 	—
	 	Reverse Dutch Auction Procedures
	Schedule 4.2

	 	—
	 	Consents
	Schedule 4.3(a)

	 	—
	 	Ownership of each Group Member and its Subsidiaries
	Schedule 4.3(b)

	 	 	 	P&G JV Agreements
	Schedule 4.4(b)

	 	—
	 	Material Liabilities or Obligations
	Schedule 4.7

	 	—
	 	Litigation
	Schedule 4.8

	 	—
	 	Taxes
	Schedule 4.12

	 	—
	 	Labor Matters
	Schedule 4.14

	 	—
	 	Environmental Matters
	Schedule 4.15

	 	—
	 	Intellectual Property
	Schedule 4.16

	 	—
	 	Real Property
	Schedule 4.17

	 	—
	 	Bank and Security Accounts
	Schedule 4.18

	 	—
	 	Insurance
	Schedule 7.13

	 	—
	 	Postclosing Deliveries
	Schedule 8.1(b)

	 	—
	 	Existing Indebtedness
	Schedule 8.2

	 	—
	 	Existing Liens
	Schedule 8.3

	 	—
	 	Existing Investments
	Schedule 8.3A

	 	—
	 	Proposed Acquisitions
	Schedule 8.9

	 	—
	 	Transactions with Affiliates
	 
	 	 	 	 
	EXHIBITS

	 
	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment
	Exhibit B-1

	 	—
	 	Form of A Term Loan Note
	Exhibit B-2

	 	—
	 	Form of B Term Loan Note
	Exhibit B-3

	 	—
	 	Form of Delayed-Draw Term Loan Note
	Exhibit B-4

	 	—
	 	Form of Incremental Term Loan Note
	Exhibit B-5

	 	—
	 	Form of Revolving Loan Note
	Exhibit C

	 	—
	 	Form of Notice of Borrowing
	Exhibit D

	 	—
	 	Form of Swingline Request
	Exhibit E

	 	—
	 	Form of L/C Request
	Exhibit F

	 	—
	 	Form of Notice of Conversion or Continuation
	Exhibit G

	 	—
	 	Form of Compliance Certificate
	Exhibit H

	 	—
	 	Form of Guaranty and Security Agreement






v









 





          This Credit Agreement, dated as of June 30, 2011, is entered into among ALERE INC., a Delaware
corporation (the “Borrower”), the Lenders (as defined below), the L/C Issuers (as defined
below) and GENERAL ELECTRIC CAPITAL CORPORATION (“GE Capital”), as administrative agent and
collateral agent for the Lenders and the L/C Issuers (in such capacity, and together with its
successors and permitted assigns, the “Administrative Agent”), JEFFERIES FINANCE
LLC, as Syndication Agent, and CREDIT SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA, DnB NOR
BANK ASA and SUNTRUST BANK as Co-Documentation Agents.




          The parties hereto agree as follows:




ARTICLE I

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS




                Section 1.1 Defined Terms. As used in this Agreement, the following terms have the following meanings:




          “A Term Loan” has the meaning specified in Section 2.1(b)(i).




          “A Term Loan Commitment” means, with respect to each Term Loan Lender, the commitment
of such Lender to make A Term Loans to the Borrower, which commitment is in the amount set forth
opposite such Lender’s name on Schedule I under the caption “A Term Loan
Commitment”, as amended to reflect Assignments and as such amount may be reduced pursuant to
this Agreement. The aggregate amount of the A Term Loan Commitments on the Closing Date equals
$625,000,000.




          “Affected Lender” has the meaning specified in Section 2.18(a).




          “Affiliate” means, with respect to any Person, each officer, director, general partner
or joint-venturer of such Person and any other Person that directly or indirectly controls, is
controlled by, or is under common control with, such Person; provided, however,
that no Secured Party shall be an Affiliate of the Borrower. For purpose of this definition,
“control” means the possession of either (a) the power to vote, or the beneficial ownership
of, 10% or more of the Voting Stock of such Person or (b) the power to direct or cause the
direction of the management and policies of such Person, whether by contract or otherwise.




          “Agreement” means this Credit Agreement.




          “Applicable Margin” means, with respect to A Term Loans, Delayed-Draw Term
Loans, B Term Loans, Revolving Loans and Swing Loans, in each case a percentage equal to (i) during
the period commencing on the Closing Date and ending on the next date of determination that is at
least 180 days after the Closing Date, the percentage set forth in the applicable column opposite
Level III in the table set forth below and (ii) thereafter, as of each date of determination (and
until the next such date of determination), a percentage equal to the percentage set forth below in
the applicable column opposite the level corresponding to the Consolidated Secured Leverage Ratio
in effect as of the last day of the most recently ended Fiscal Quarter:














 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	A TERM LOANS, DELAYED-DRAW	 	 
	 	 	 	 	TERM LOANS, REVOLVING	 	 
	 	 	 	 	LOANS AND SWING LOANS	 	B TERM LOANS
	 	 	 	 	 	 	 	 	EURODOLLAR	 	 
	 	 	 	 	 	 	 	 	RATE LOANS	 	 
	 	 	 	 	 	 	 	 	(EXCEPT FOR	 	 	 	 
	 	 	CONSOLIDATED SECURED	 	BASE RATE	 	SWING	 	BASE RATE	 	EURODOLLAR
	LEVEL	 	LEVERAGE RATIO	 	LOANS	 	LOANS)	 	LOANS	 	RATE LOANS
	I

	 	Greater than 4.00: 1.00
	 	 	2.50	%	 	 	3.50	%	 	 	3.25	%	 	 	4.25	%
	II

	 	Less than or equal to 4.00:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	1.00 and greater than 3.00 : 1.00
	 	 	2.00	%	 	 	3.00	%	 	 	2.75	%	 	 	3.75	%
	III

	 	Less than or equal to 3.00: 1.00
	 	 	1.75	%	 	 	2.75	%	 	 	2.50	%	 	 	3.50	%






          Each date of determination for the “Applicable Margin” shall be the date that is
3 Business Days after delivery by the Borrower to the Administrative Agent of a new Compliance
Certificate pursuant to Section 6.1(c). Notwithstanding anything to the contrary set forth
in this Agreement (including the then effective Consolidated Secured Leverage Ratio), the
Applicable Margin with respect to Loans shall equal the percentage set forth in the appropriate
column opposite Level I in the table above, effective immediately upon (x) the occurrence of any
Event of Default under Section 9.1(e)(ii) or (y) the delivery of a notice by the
Administrative Agent or the Required Lenders to the Borrower during the continuance of any other
Event of Default and, in each case, for as long as such Event of Default shall be continuing.




          “Applicable Threshold Price” has the meaning specified in Schedule 2.21.




          “Approved Fund” means, with respect to any Lender, any Person (other than a natural
Person) that (a) 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 and (b) is
advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other
than an individual) or any Affiliate of any Person (other than an individual) that administers or
manages such Lender.




          “Arrangers” shall mean Jefferies Finance LLC, GE Capital Markets, Inc., Credit Suisse
Securities (USA) LLC and Goldman Sachs Bank USA, as joint lead arrangers and joint bookrunners for
the initial Facilities.




          “Assignment” means an assignment agreement entered into by a Lender, as assignor, and
any Person, as assignee, pursuant to the terms and provisions of Section 11.2 (with the
consent of any party whose consent is required by Section 11.2), accepted by the
Administrative Agent, in substantially the form of Exhibit A, or any other form approved by
the Administrative Agent.




          “Auction” has the meaning specified in Section 2.21(a).




          “Auction Amount” has the meaning specified in Schedule 2.21.




          “Auction Assignment and Assumption” has the meaning specified in Schedule
2.21.




          “Auction Manager” has the meaning specified in Section 2.21(a).




          “Auction Notice” has the meaning specified in Schedule 2.21.




          “B Term Loan” has the meaning specified in Section 2.1(b)(ii).







2









 








          “B Term Loan Commitment” means, with respect to each Term Loan Lender, the commitment
of such Lender to make B Term Loans to the Borrower, which commitment is in the amount set forth
opposite such Lender’s name on Schedule I under the caption “B Term Loan
Commitment”, as amended to reflect Assignments and as such amount may be reduced pursuant to
this Agreement. The aggregate amount of the B Term Loan Commitments on the Closing Date equals
$925,000,000.




          “Base Rate” means, at any time, a rate per annum equal to the highest of (a) the rate
last quoted by The Wall Street Journal as the latest “U.S. prime rate” or, if The Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the Federal
Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the
“bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted
therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve
Board (as determined by the Administrative Agent), (b) the sum of 0.5% per annum and the Federal
Funds Rate and (c) the Eurodollar Rate for a Eurodollar Rate Loan with a one-month Interest Period
commencing on such day plus 1.00%.




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




          “Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA
(whether governed by the laws of the United States or otherwise) to which any Group Member incurs
or otherwise has any obligation or liability, contingent or otherwise.




          “Borrowing” means a borrowing of one Type of Loans of a single Tranche (other than
Swing Loans and Loans deemed made pursuant to Section 2.3 or 2.4) made in one
Facility on the same day by the Lenders according to their respective Commitments under such
Facility.




          “Business Day” means any day of the year that is not a Saturday, Sunday or a day on
which banks are required or authorized to close in New York City and, when determined in connection
with notices and determinations in respect of any Eurodollar Rate or Eurodollar Rate Loan or any
funding, conversion, continuation, Interest Period or payment of any Eurodollar Rate Loan, that is
also a day on which dealings in Dollar deposits are carried on in the London interbank market.




          “Capital Expenditures” means, for any Person for any period, the aggregate of all
expenditures, whether or not made through the incurrence of Indebtedness, by such Person and its
Subsidiaries during such period for the acquisition, leasing (pursuant to a Capital Lease),
construction, replacement, repair, substitution or improvement of fixed or capital assets or
additions to equipment, in each case required to be capitalized under GAAP on a Consolidated
balance sheet of such Person, excluding (a) interest capitalized during construction and (b) any
expenditure to the extent, for the purposes of the definition of Permitted Acquisition, such
expenditure is part of the aggregate amounts payable in connection with, or other consideration
for, any Permitted Acquisition consummated during or prior to such period.




          “Capital Lease” means, with respect to any Person, any lease of, or other arrangement
conveying the right to use, any property (whether real, personal or mixed) by such Person as lessee
that has been or should be accounted for as a capital lease on a balance sheet of such Person
prepared in accordance with GAAP.







3









 








          “Capitalized Lease Obligations” means, at any time, with respect to any Capital Lease,
any lease entered into as part of any Sale and Leaseback Transaction of any Person or any synthetic
lease, the amount of all obligations of such Person that is (or that would be, if such synthetic
lease or other lease were accounted for as a Capital Lease) capitalized on a balance sheet of such
Person prepared in accordance with GAAP.




          “Cash Collateral Account” means a deposit account or securities account in the name of
a Loan Party and under the sole control (as defined in the applicable UCC) of the Administrative
Agent and (a) in the case of a deposit account, from which such Loan Party may not make withdrawals
except as permitted by the Administrative Agent and (b) in the case of a securities account, with
respect to which the Administrative Agent shall be the entitlement holder and the only Person
authorized to give entitlement orders with respect thereto.




          “Cash Equivalents” means (a) any readily-marketable securities (i) issued by, or
directly, unconditionally and fully guaranteed or insured by the United States federal government
or (ii) issued by any agency of the United States federal government the obligations of which are
fully backed by the full faith and credit of the United States federal government, (b) any
readily-marketable direct obligations issued by any other agency of the United States federal
government, any state of the United States or any political subdivision of any such state or any
public instrumentality thereof, in each case having a rating of at least “A-1” from S&P or at least
“P-1” from Moody’s, (c) any commercial paper rated at least “A-1” by S&P or “P-1”
by Moody’s and issued by any Person organized under the laws of any state of the United States, (d)
any Dollar-denominated time deposit, insured certificate of deposit, overnight bank deposit or
bankers’ acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A)
organized under the laws of the United States, any state thereof or the District of Columbia, (B)
“adequately capitalized” (as defined in the regulations of its primary federal banking regulators)
and (C) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000, (e) shares
of any United States money market fund that (i) has substantially all of its assets invested
continuously in the types of investments referred to in clause (a), (b),
(c) or (d) above with maturities as set forth in the proviso below, (ii) has net
assets in excess of $500,000,000 and (iii) has obtained from either S&P or Moody’s the highest
rating obtainable for money market funds in the United States; provided, however,
that the maturities of all obligations specified in any of clauses (a), (b),
(c) and (d) above shall not exceed 365 days, and (f) in the case of any Subsidiary
organized in a jurisdiction outside the United States: (i) direct obligations of the sovereign
nation (or agency thereof) in which such Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation (or any agency thereof),
(ii) investments of the type and maturity described in clauses (a) through (e)
above of foreign obligors, which investments or obligors (or the parents of such obligors) have
ratings described in such clauses or equivalent ratings from comparable foreign rating agencies or
(iii) investments of the type and maturity described in clauses (a) through (e)
above of foreign obligors (or the parents of such obligors), which investments or obligors (or the
parent of such obligors) are not rated as provided in such clauses or in clause (ii) above
but which are, in the reasonable judgment of the Borrower, comparable in investment quality to such
investments and obligors (or the parents of such obligors).




          “CERCLA” means the United States Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. §§ 9601 et seq.).




          “Change of Control” means the occurrence of any of the following: (a) any person or
group of persons (within the meaning of the Securities Exchange Act of 1934) shall have






4









 







acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under
the Securities Exchange Act of 1934) of more than 50% of the issued and outstanding shares of
capital Stock of the Borrower having the right to vote for the election of directors of the
Borrower under ordinary circumstances; or (b) during any period of twelve consecutive calendar
months, individuals who at the beginning of such period constituted the board of directors of the
Borrower (together with any new directors whose election by the board of directors of the Borrower
or whose nomination for election by the stockholders of the Borrower was approved by a vote of at
least two-thirds of the directors then still in office who either were directors at the beginning
of such period or whose election or nomination for election was previously so approved) cease for
any reason other than death or disability to constitute a majority of the directors then in office;
or (c) a “Change of Control”, a “Fundamental Change” or “Termination of Trading” or any term of
similar effect, as defined in any Existing Notes Indenture or any Permitted Additional Debt
Documents relating to Indebtedness in an aggregate principal amount equal to or greater than
$25,000,000 (or any indenture or agreement governing any Indebtedness (in an aggregate principal
amount equal to or greater than $25,000,000) incurred pursuant to a Permitted Refinancing in
respect of any such Indebtedness as permitted by Section 8.1), shall occur.




          “Closing Date” means the first date on which any Loan is made or any Letter of Credit
is Issued.




          “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and
any regulations promulgated thereunder.




          “Collateral” means all property and interests in property and proceeds thereof now
owned or hereafter acquired by any Loan Party in or upon which a Lien is granted or purported to be
granted pursuant to any Loan Document.




          “Commitment” means any of the commitments of any Lender, i.e., an A Term Loan
Commitment, a B Term Loan Commitment, a Delayed-Draw Term Loan Commitment, an Incremental Term Loan
Commitment or a Revolving Credit Commitment.




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




          “Consolidated” means, with respect to any Person, the accounts of such Person and its
Subsidiaries consolidated in accordance with GAAP.




          “Consolidated Cash Interest Expense” means, with respect to the Borrower and its
Subsidiaries for any period, the Consolidated Interest Expense for such period less the sum
of (without duplication), in each case to the extent included in the definition of Consolidated
Interest Expense, (a) the amount of all consent fees and minimum fees paid prior to the Closing
Date in connection with the Borrower’s consent solicitations with respect to certain of its
Existing Notes, (b) the amortized amount of debt discount and debt issuance costs, (c) charges
relating to write-ups or write-downs in the book or carrying value of existing Consolidated Total
Debt, (d) interest payable in evidences of Indebtedness or by addition to the principal of the
related Indebtedness and (e) other non-cash interest; provided that Consolidated
Interest Expense for the four Fiscal Quarter period ending (i) September 30, 2011 shall be the
actual Consolidated Interest Expense (excluding, for this purpose, any Consolidated Interest
Expense under clause (a)(iii) of the definition thereof) for the Fiscal Quarter then ended
multiplied by 4 plus, if applicable, the amount of any Consolidated Interest Expense under clause
(a)(iii) incurred in such Fiscal Quarter, (ii) December 31, 2011 shall be the actual Consolidated
Interest Expense (excluding, for this






5









 







purpose, any Consolidated Interest Expense under clause (a)(iii) of the definition thereof)
for two Fiscal Quarters then ended multiplied by 2 plus, if applicable, the amount of any
Consolidated Interest Expense under clause (a)(iii) incurred in such Fiscal Quarter and in the
immediately preceding Fiscal Quarter, and (iii) March 31, 2012 shall be the actual Consolidated
Interest Expense (excluding, for this purpose, any Consolidated Interest Expense under clause
(a)(iii) of the definition thereof) for three Fiscal Quarters then ended multiplied by 4/3 plus, if
applicable, the amount of any Consolidated Interest Expense under clause (a)(iii) incurred in such
Fiscal Quarter and in the two immediately preceding Fiscal Quarters.




          “Consolidated Current Assets” means, with respect to the Borrower and its Subsidiaries
at any date of determination, the total Consolidated current assets of the Borrower and its
Subsidiaries at such date other than cash, Cash Equivalents and any Indebtedness owing to the
Borrower or any of its Subsidiaries by Affiliates of the Borrower.




          “Consolidated Current Liabilities” means, with respect to the Borrower and its
Subsidiaries at any date of determination, all liabilities of the Borrower and its Subsidiaries at
such date that should be classified as current liabilities on a Consolidated balance sheet of the
Borrower; provided, however, that “Consolidated Current Liabilities” shall
exclude the principal amount of the Loans then outstanding.




          “Consolidated EBITDA” means, with respect to the Borrower and its Subsidiaries for any
period, (a) the Consolidated Net Income of the Borrower and its Subsidiaries on a Consolidated
basis for such period plus (b) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income but without duplication, (i) any provision for income
taxes or other taxes measured by net income, (ii) Consolidated Interest Expense, amortization of
debt discount and commissions and other fees and charges associated with Indebtedness, (iii) any
loss from extraordinary items and any non-recurring loss, (iv) any depreciation, depletion and
amortization expense, (v) any aggregate net loss on the Sale of property (other than accounts (as
defined under the applicable UCC) and inventory) outside the ordinary course of business, and (vi)
any other non-cash expenditure, charge or loss for such period (other than any non-cash
expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to
accounts and inventory), including the amount of any compensation deduction as the result of any
grant of Stock or Stock Equivalents to employees, officers, directors or consultants, and
minus (c) the sum of, in each case to the extent included in the calculation of such
Consolidated Net Income (except, in the case of succeeding clause (vi), whether or not
included in such calculation) and without duplication, (i) any credit for income taxes or other
taxes measured by net income, (ii) any interest income, (iii) any gain from extraordinary items and
any other non-recurring gain, (iv) any aggregate net gain from the Sale of property (other than
accounts (as defined in the applicable UCC) and inventory) out of the ordinary course of business
by such Person, (v) any other non-cash gain or non-cash income, including any reversal of a charge
referred to in clause (b)(vi) above by reason of a decrease in the value of any Stock or
Stock Equivalent and any cancellation of indebtedness income, and (vi) any other cash payment in
respect of expenditures, charges and losses that have been added to Consolidated EBITDA pursuant to
clause (b)(vi) above in any prior period.




          “Consolidated Interest Coverage Ratio” means, with respect to the Borrower and its
Subsidiaries on a Consolidated basis for any period, the ratio of (a) Consolidated EBITDA for such
period to (b) Consolidated Cash Interest Expense for such period.







6









 








          “Consolidated Interest Expense” means, for the Borrower and its Subsidiaries on a
Consolidated basis for any period, (a) total interest expense for such period and including, in any
event, (i) interest capitalized during such period and net costs under Interest Rate Contracts for
such period, (ii) all fees, charges, commissions, discounts and other similar obligations (other
than reimbursement obligations) with respect to letters of credit, bank guarantees, banker’s
acceptances, surety bonds and performance bonds (whether or not matured) payable by the Borrower
and its Subsidiaries during such period and (iii) cash dividends on any Stock of the Borrower to
the extent permitted under Section 8.5(f) minus (b) Consolidated net gains of the
Borrower and its Subsidiaries under Interest Rate Contracts for such period.




          “Consolidated Net Income” means, with respect to the Borrower and its Subsidiaries for
any period, the Consolidated net income (or loss) of the Borrower and its Subsidiaries for such
period; provided, however, that the following shall be excluded: (a) the net
income of any other Person in which the Borrower or one of its Subsidiaries has a joint interest
with a third-party (which interest does not cause the net income of such other Person to be
Consolidated into the net income of such Person), except to the extent of the amount of cash
dividends or cash distributions paid to such Person or Subsidiary, (b) the net income of any
Subsidiary that is, on the last day of such period, subject to any restriction or limitation on the
payment of dividends or the making of other distributions (other than under the Loan Documents), to
the extent of such restriction or limitation, (c) the net income of any other Person arising prior
to such other Person becoming a Subsidiary or merging or consolidating into the Borrower or one of
its Subsidiaries and (d) consolidated minority interest expense of such Person or one of its
Subsidiaries resulting from allocations of earnings of any Consolidated Subsidiary which is less
than 100% owned, except to the extent of the amount of cash dividends and cash distributions paid
by such Person or such Subsidiary to the minority shareholders of such Consolidated Subsidiary.




          “Consolidated Secured Indebtedness” means, at any date of determination, an amount
equal to the Consolidated Total Debt at such time that is secured by a Lien on any asset of the
Borrower and/or any of its Subsidiaries (including, without limitation, the Obligations) other than
property or assets held in a defeasance or similar trust or arrangement for the benefit of the
Indebtedness secured thereby.




          “Consolidated Secured Leverage Ratio” means, at any date of determination, the ratio
of (a) Consolidated Secured Indebtedness outstanding as of such date to (b) Consolidated EBITDA for
the last period of four consecutive Fiscal Quarters ending on or before such date.




          “Consolidated Total Debt” means, at any date of determination, the remainder of (A)
the sum of (without duplication) all Indebtedness (or, if issued at a discount, the face amount of
such Indebtedness) of a type described in clause (a), (b), (c)(i),
(d), (f) or (g) of the definition thereof and all Guaranty Obligations with
respect to any such Indebtedness, in each case of the Borrower and its Subsidiaries on a
Consolidated basis minus (B) Unrestricted cash and Cash Equivalents on hand of the Loan
Parties at such time in an aggregate amount not to exceed $50,000,000.




          “Consolidated Total Leverage Ratio” means, at any date of determination, the ratio of
(a) Consolidated Total Debt outstanding as of such date to (b) Consolidated EBITDA for the last
period of four consecutive Fiscal Quarters ending on or before such date.




          “Constituent Documents” means, with respect to any Person, collectively and, in each
case, together with any modification of any term thereof, (a) the articles of incorporation,
certificate of incorporation, constitution or certificate of formation of such Person, (b) the
bylaws,






7









 







operating agreement or joint venture agreement of such Person, (c) any other constitutive,
organizational or governing document of such Person, whether or not equivalent, and (d) any other
document setting forth the manner of election or duties of the directors, officers or managing
members of such Person or the designation, amount or relative rights, limitations and preferences
of any Stock of such Person.




          “Contractual Obligation” means, with respect to any Person, any provision of any
Security issued by such Person or of any document or undertaking (other than a Loan Document) to
which such Person is a party or by which it or any of its property is bound or to which any of its
property is subject.




          “Control Agreement” means, with respect to any deposit account, any securities
account, commodity account, securities entitlement or commodity contract, an agreement, in form and
substance satisfactory to the Administrative Agent, among the Administrative Agent, the financial
institution or other Person at which such account is maintained or with which such entitlement or
contract is carried and the Loan Party maintaining such account, entitlement or contract, effective
to grant “control” (as defined under the applicable UCC) over such account, entitlement or
contract, to the Administrative Agent.




          “Controlled Deposit Account” means each deposit account (including all funds on
deposit therein) that is the subject of an effective Control Agreement and that is maintained by
any Loan Party with a financial institution approved by the Administrative Agent (such approval not
to be unreasonably withheld).




          “Controlled Securities Account” means each securities account or commodity account
(including all financial assets held therein and all certificates and instruments, if any,
representing or evidencing such financial assets) that is the subject of an effective Control
Agreement and that is maintained by any Loan Party with a securities intermediary or commodity
intermediary approved by the Administrative Agent (such approval not to be unreasonably withheld).




          “Copyrights” means all right, title and interest (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to copyrights and all mask work, database and
design rights, whether or not registered or published, all registrations thereof and all
applications therefor.




          “Corporate Chart” means a document in form reasonably acceptable to the Administrative
Agent and setting forth, as of a date set forth therein, for each Person that is a Loan Party, that
is subject to Section 7.10 or that is a Subsidiary or joint venture of any of them, (a) the
full legal name of such Person, (b) the jurisdiction of organization and, in the case of any Loan
Party, any organizational number and tax identification number of such Person, (c) in the case of
any Loan Party, the location of such Person’s chief executive office (or, if applicable, sole place
of business) and (d) the percentage of outstanding shares of each class of Stock of such Person
(other than the Borrower) owned, directly or indirectly, by any Loan Party or any Subsidiary of any
of them.




          “Customary Permitted Liens” means, with respect to any Person, any of the following:




          (a) Liens (i) with respect to the payment of taxes, assessments or other governmental charges
or (ii) of suppliers, carriers, materialmen, warehousemen, workmen or mechanics and other similar
Liens, in each case imposed by law or arising in the ordinary course of business,






8









 







and, for each of the Liens in clauses (i) and (ii) above for amounts that are
not yet due or that are being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves or other appropriate provisions are
maintained on the books of such Person in accordance with GAAP;




          (b) (i) Liens of a collection bank on items in the course of collection arising under Section
4-208 of the UCC as in effect in the State of New York or any similar section under any applicable
UCC or any similar Requirement of Law of any foreign jurisdiction or (ii) other rights of setoff or
banker’s liens in favor of banks or other depository institutions arising in the ordinary course of
business;




          (c) pledges or cash deposits made in the ordinary course of business (i) in connection with
workers’ compensation, unemployment insurance, social security or other types of governmental
insurance benefits (other than any Lien imposed by ERISA), (ii) to secure the performance of bids,
tenders, leases (other than Capital Leases) sales or other trade contracts (other than for the
repayment of borrowed money) or (iii) made in lieu of, or to secure the performance of, surety,
customs, reclamation or performance bonds (in each case not related to judgments or litigation);




          (d) judgment liens (other than for the payment of taxes, assessments or other governmental
charges) securing judgments and other proceedings not constituting an Event of Default under
Section 9.1(f) and pledges or cash deposits made in lieu of, or to secure the performance
of, judgment or appeal bonds in respect of such judgments and proceedings;




          (e) Liens (i) arising by reason of zoning restrictions, easements, licenses, reservations,
restrictions, covenants, rights-of-way, encroachments, minor defects or irregularities in title
(including leasehold title) and other similar encumbrances on the use of real property or (ii)
consisting of leases, licenses or subleases (other than Capital Leases) granted by a lessor,
licensor or sublessor on its real property in the ordinary course of business that, for each of the
Liens in clauses (i) and (ii) above, do not, in the aggregate, materially (x)
impair the use or occupancy of such real property or (y) interfere with the ordinary conduct of the
business conducted by the Loan Parties at such real property;




          (f) Liens of landlords and mortgagees of landlords (i) arising by statute or under any lease
or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures
and movable tangible property located on the real property leased or subleased from such landlord,
(iii) for amounts not overdue or that are being contested in good faith by appropriate proceedings
diligently conducted and (iv) for which adequate reserves or other appropriate provisions are
maintained on the books of such Person in accordance with GAAP;




          (g) the title and interest of a lessor or sublessor in and to personal property leased or
subleased (other than through a Capital Lease), in each case extending only to such personal
property;




          (h) licenses and sublicenses of intellectual property granted to third parties in the ordinary
course of business that do not, in the aggregate, materially (x) impair the use of such
intellectual property or (y) interfere with the ordinary conduct of the business conducted by the
Loan Parties with such intellectual property; and







9









 








          (i) precautionary financing statements filed in connection with operating leases or other
transactions that are not secured transactions.




          “Default” means any event that, with the passing of time or the giving of notice or
both, would become an Event of Default.




          “Defaulting Lender” means any Lender with respect to which a Lender Default is in
effect.




          “Delayed-Draw Commitment Fee” has the meaning specified in Section 2.11(b).




          “Delayed-Draw Term Loan” has the meaning specified in Section 2.1(b)(iii).




          “Delayed-Draw Term Loan Commitment” means, for each Lender, the amount set forth
opposite such Lender’s name in Schedule I directly below the column entitled “Delayed-Draw
Term Loan Commitment,” as the same may be (x) reduced from time to time or terminated pursuant to
Sections 2.5(a), 2.5(b) and/or 9.2, as applicable, or (y) adjusted from
time to time as a result of assignments to or from such Lender pursuant to Sections 2.18 or
11.2(b). The aggregate amount of the Delayed-Draw Term Loan Commitments on the Closing
Date equals $300,000,000.




          “Delayed-Draw Term Loan Commitment Termination Date” means the date occurring on the
first anniversary of the Closing Date.




          “Delayed-Draw Term Loan Facility” means the Delayed-Draw Term Loan Commitments and the
provisions herein relating to the Delayed-Draw Term Loans.




          “Delayed-Draw Term Loan Lender” means, at any time, each Lender with a Delayed-Draw
Term Loan Commitment or with outstanding Delayed-Draw Term Loans.




          “Disclosure Documents” means, collectively, (a) all confidential information memoranda
and related materials prepared in connection with the syndication of the Facilities and (b) all
other documents filed by any Group Member with the SEC.




          “Discount Range” has the meaning specified in Schedule 2.21.




          “Disqualified Stock” means any Stock of the Borrower that, by its terms (or by the
terms of any security or other Stock into which it is convertible or for which it is exchangeable,
either mandatorily or at the option of the holder thereof), or upon the happening of any event or
condition stated in such terms, (a) is mandatorily redeemable or otherwise matures and is payable
(in either case, other than either solely at the option of the Borrower or solely for common Stock
of the Borrower and/or Preferred Stock of the Borrower that is not Disqualified Stock (together
with cash payments in lieu of the issuance of fractional shares)), whether pursuant to a sinking
fund obligation or otherwise, (b) is redeemable at the option of holder thereof (other than solely
for common Stock of the Borrower and/or Preferred Stock of the Borrower that is not Disqualified
Stock (together with cash payments in lieu of the issuance of fractional shares)), in whole or in
part, or is required to be repurchased by the Borrower or any of its Subsidiaries, in whole or in
part, at the option of the holder thereof or (c) is convertible into or exchangeable, either
mandatorily or at the option of the holder thereof (but other than solely at the option of the
Borrower), for Indebtedness or any other Stock (other than solely common Stock of the Borrower






10









 







and/or Preferred Stock of the Borrower that is not Disqualified Stock (together with cash
payments in lieu of the issuance of fractional shares)), in each of the foregoing cases (a), (b)
and (c), prior to 180 days after the latest Maturity Date then in effect, except, in the case of
clauses (a) and (b), if as a result of a “change of control” or “asset sale”, so long as any rights
of the holders thereof upon the occurrence of such a change of control or asset sale event are
subject to (unless waived by the Required Lenders) (A) in the case of a “change of control”, (i)
the prior payment in full of the Loans and all other Obligations (other than unasserted contingent
indemnification obligations), (ii) the cancellation or expiration of all Letters of Credit (or the
cash collateralization of all L/C Obligations at face value plus the amount of fees accruing
thereon through expiration of the applicable Letters of Credit) and (iii) the termination of the
Commitments and (B) in the case of an “asset sale”, the net cash proceeds therefrom being applied
to the Obligations as provided for in this Agreement. It is hereby acknowledged that the Borrower’s
Series B Perpetual Convertible Preferred Stock, as constituted on the Closing Date, shall not be
Disqualified Stock.




          “Dollars” and the sign “$” each mean the lawful money of the United States of
America.




          “Domestic Person” means any “United States person” under and as defined in Section
7701(a)(30) of the Code.




          “E-Fax” means any system used to receive or transmit faxes electronically.




          “Effective Yield” means, as to any Tranche of Commitments or Loans under this
Agreement, the effective yield on such Tranche as reasonably determined by the Administrative
Agent, taking into account the applicable interest rate margins, interest rate benchmark floors and
all fees, including recurring, up-front or similar fees or original issue discount (amortized over
the shorter of (x) the life of such Loans and (y) the four years following the date of incurrence
thereof) payable generally to Lenders making such Loans, but excluding (i) any arrangement,
structuring or other fees payable in connection therewith that are not generally shared with the
Lenders thereunder and (ii) any customary consent fees paid generally to consenting Lenders.




          “Electronic Transmission” means each document, instruction, authorization, file,
information and any other communication transmitted, posted or otherwise made or communicated by
e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service.




          “Eligible Assignee” has the meaning specified in Section 11.2(b).




          “Engagement Letter” means the Engagement Letter (including the annexes and exhibits
thereto) dated as of June 2, 2011, among Jefferies Finance LLC, GE Capital Markets, Inc., General
Electric Capital Corporation, Credit Suisse Securities (USA) LLC, Goldman Sachs Bank USA and the
Borrower.




          “Environmental Laws” means all Requirements of Law and Permits imposing liability or
standards of conduct for or relating to the regulation and protection of human health, safety, the
environment and natural resources, including CERCLA, the SWDA, the Hazardous Materials
Transportation Act (49 U.S.C. §§ 5101 et seq.), the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. §§ 136 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the
Clean Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §§
1251 et seq.), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.),






11









 







the Safe Drinking Water Act (42 U.S.C. §§ 300(f) et seq.), all regulations promulgated under
any of the foregoing, all analogous Requirements of Law and Permits and any environmental transfer
of ownership notification or approval statutes, including the Industrial Site Recovery Act (N.J.
Stat. Ann. §§ 13:1K-6 et seq.).




          “Environmental Liabilities” means all Liabilities (including costs of Remedial
Actions, natural resource damages and costs and expenses of investigation and feasibility studies)
that may be imposed on, incurred by or asserted against any Group Member as a result of, or related
to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in
contract, tort, implied or express warranty, strict liability, criminal or civil statute or common
law or otherwise, arising under any Environmental Law or in connection with any environmental,
health or safety condition or with any Release and resulting from the ownership, lease, sublease or
other operation or occupation of property by any Group Member, whether on, prior or after the date
hereof.




          “ERISA” means the United States Employee Retirement Income Security Act of 1974, as
amended from time to time, and any regulations promulgated thereunder.




          “ERISA Affiliate” means, collectively, any Group Member, and any Person under common
control, or treated as a single employer, with any Group Member, within the meaning of Section
414(b), (c), (m) or (o) of the Code.




          “ERISA Event” means any of the following: (a) a reportable event described in Section
4043(b) of ERISA (or, unless the 30-day notice requirement has been duly waived under the
applicable regulations, Section 4043(c) of ERISA) with respect to a Title IV Plan; (b) the
withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c)
the complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan; (d) with
respect to any Multiemployer Plan, the filing of a notice of reorganization, insolvency or
termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA, (e) the
filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as
termination) under Section 4041 of ERISA, (f) the institution of proceedings to terminate a Title
IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any required contribution to any
Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lien under Section 412 of the
Code or Section 302 or 4068 of ERISA on any property (or rights to property, whether real or
personal) of any ERISA Affiliate, (i) the failure of a Benefit Plan or any trust thereunder
intended to qualify for tax exempt status under Section 401 or 501 of the Code or other
Requirements of Law to qualify thereunder, (j) a Title IV Plan is in “at risk status” within the
meaning of Code Section 430(i) or ERISA Section 303(i); (k) a Multiemployer Plan is in “endangered
status” or “critical status” within the meaning of Code Section 432(b) or ERISA Section 305(b); (l)
an ERISA Affiliate incurs a substantial cessation of operations within the meaning of ERISA Section
4062(e), with respect to a Title IV Plan; or (m) any other event or condition that might reasonably
be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the
imposition of any liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC
premiums due but not delinquent.




          “E-Signature” means the process of attaching to or logically associating with an
Electronic Transmission an electronic symbol, encryption, digital signature or process (including






12









 







the name or an abbreviation of the name of the party transmitting the Electronic Transmission)
with the intent to sign, authenticate or accept such Electronic Transmission.




          “E-System” means any electronic system, including Intralinks®, SyndTrak
Online, ClearPar® and any other Internet or extranet-based site, whether such electronic
system is owned, operated or hosted by the Administrative Agent, any of its Related Persons or any
other Person, providing for access to data protected by passcodes or other security system.




          “Eurodollar Base Rate” means, with respect to any Interest Period for any Eurodollar
Rate Loan, the rate determined by the Administrative Agent to be the offered rate for deposits in
Dollars for the applicable Interest Period appearing on the Reuters Screen LIBOR01 page as of 11:00
a.m. (London time) on the second full Business Day next preceding the first day of each Interest
Period. In the event that such rate does not appear on the Reuters Screen LIBOR01 page (or
otherwise on the Reuters screen) at such time, the “Eurodollar Base Rate” shall be
determined by reference to such other comparable publicly available service for displaying the
offered rate for deposit in Dollars in the London interbank market as may be selected by the
Administrative Agent and, in the absence of availability, such other method to determine such
offered rate as may be selected by the Administrative Agent in its sole discretion. Notwithstanding
the foregoing, in no event shall the Eurodollar Base Rate with respect to any Interest Period for
any outstanding B Term Loan that is maintained as a Eurodollar Rate Loan be less than 1.00% per
annum.




          “Eurodollar Rate” means, with respect to any Interest Period and for any Eurodollar
Rate Loan, an interest rate per annum determined as the ratio of (a) the Eurodollar Base Rate with
respect to such Interest Period for such Eurodollar Rate Loan to (b) the difference between the
number one and the Eurodollar Reserve Requirements with respect to such Interest Period and for
such Eurodollar Rate Loan.




          “Eurodollar Rate Loan” means any Loan that bears interest based on the Eurodollar
Rate.




          “Eurodollar Reserve Requirements” means, with respect to any Interest Period and for
any Eurodollar Rate Loan, a rate per annum equal to the aggregate, without duplication, of the
maximum rates (expressed as a decimal number) of reserve requirements in effect 2 Business Days
prior to the first day of such Interest Period (including basic, supplemental, marginal and
emergency reserves) under any regulations of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as “eurocurrency liabilities” in Regulation D of the
Federal Reserve Board) maintained by a member bank of the United States Federal Reserve System.




          “Event of Default” has the meaning specified in Section 9.1.




          “Excess Cash Flow” means, for any period, (a) Consolidated EBITDA of the Borrower for
such period, minus (b) without duplication, (i) any cash principal payment on the Loans
during such period (but only, in the case of payment in respect of Revolving Loans and Swing Loans,
to the extent that the Revolving Credit Commitments are permanently reduced by the amount of such
payment) other than (x) any mandatory prepayment required pursuant to Section 2.8(a)
because of the existence of Excess Cash Flow and (y) any prepayment of Term Loans pursuant to
Section 2.21, (ii) any scheduled or other mandatory cash principal payment made by the
Borrower or any of its Subsidiaries during such period on any Capitalized Lease 





13









 







Obligation
or other Indebtedness (but only, if such Indebtedness may be reborrowed, to the extent such
payment results in a permanent reduction in commitments thereof), (iii) any Capital Expenditure
made by the Borrower or any of its Subsidiaries during such period to the extent permitted by this
Agreement, excluding the portion thereof financed with long-term Indebtedness (other than the
Obligations under the Revolving Credit Facility), (iv) the Consolidated Cash Interest Expense of
the Borrower and its Subsidiaries for such period, (v) any cash losses from extraordinary items,
(vi) any cash paid during such period or payable with respect to such period to satisfy obligations
for income taxes or other taxes measured by net income, (vii) cash restructuring costs associated
with any Permitted Acquisition, (viii) any Permitted Acquisition Consideration paid in cash and any
Investments pursuant to Section 8.3 (j) or (k) made in cash, in each case, by the
Borrower or any of its Subsidiaries during such period to the extent permitted by this Agreement
but excluding the portion thereof financed with long-term Indebtedness (other than the Obligations
under the Revolving Credit Facility) or with proceeds of the issuance of common Stock or Preferred
Stock of the Borrower, (ix) any increase in the Working Capital of the Borrower during such period
(measured as the excess of such Working Capital at the end of such period over such Working Capital
at the beginning of such period), and (x) the aggregate consideration paid in cash by the Group
Members for all Permitted Stock Repurchases during such period but excluding the portion thereof
financed with long-term Indebtedness (other than the Obligations under the Revolving Credit
Facility) or with proceeds of the issuance of common Stock or Preferred Stock of the Borrower, and
plus (c) without duplication, any decrease in the Working Capital of the Borrower during
such period (measured as the excess of such Working Capital at the beginning of such period over
such Working Capital at the end thereof).




          “Excluded Foreign Subsidiary” means (i) any Subsidiary of the Borrower that is not a
Domestic Person and (ii) any Subsidiary of the Borrower that is a Domestic Person that is a direct
or indirect Subsidiary of a Foreign Subsidiary; provided, however, that (x) the
Administrative Agent and the Borrower may agree that, despite the foregoing, any such Subsidiary
shall not be an “Excluded Foreign Subsidiary”, (y) no such Subsidiary shall be an
“Excluded Foreign Subsidiary” if (A) such Subsidiary has entered into any Guaranty
Obligations with respect to, (B) such Subsidiary has granted a security interest in any of its
property to secure, or (C) more than 65% of the Voting Stock of such Subsidiary was pledged to
secure, in each such case, directly or indirectly, any Indebtedness (other than the Obligations) of
any Loan Party (it being understood that in no event shall any joint and several liability of such
Subsidiary and any Loan Party for any Permitted Acquisition Debt under clause (i) of the definition
thereof be deemed such a Guaranty Obligation under preceding clause (A) so long as such Subsidiary
does not guaranty any other Indebtedness of any Loan Party) and (z) in no event shall Alere US
Holdings, LLC or Alere International Holdings Corp. be an Excluded Foreign Subsidiary.




          “Excluded Information” has the meaning specified in Section 2.21(d).




          “Excluded Investment” has the meaning specified in Section 8.3.




          “Excluded Sales” has the meaning specified in Section 2.8(c).




          “Existing Credit Agreements” means, collectively, the Existing First Lien Credit
Agreement and the Existing Second Lien Credit Agreement.




          “Existing First Lien Credit Agreement” means that certain First Lien Credit Agreement,
dated as of June 26, 2007, among Alere US Holdings, LLC, as borrower, the Borrower, as guarantor,
the lenders party thereto, Citizens Bank of Massachusetts, Fifth Third Bank and






14









 







Merrill Lynch Capital, as co-documentation agents, UBS Securities LLC, as joint lead arranger
and syndication agent, GE Capital Markets, Inc. as joint lead arranger and sole bookrunner, and
General Electric Capital Corporation, as administrative agent, as amended from time to time.




          “Existing Indebtedness” has the meaning specified in Section 8.1(b).




          “Existing Notes” means, collectively, the Existing Senior Notes and the Existing
Subordinated Notes.




          “Existing Notes Documents” means, collectively, the Existing Notes, the Existing Notes
Indentures and any other document related to any of the foregoing.




          “Existing Notes Indentures” means, collectively, the Existing Senior Notes Indenture
and the Existing Subordinated Notes Indentures.




          “Existing Second Lien Credit Agreement” means that certain Second Lien Credit
Agreement, dated as of June 26, 2007, among Alere US Holdings, LLC, as borrower, the Borrower, as a
guarantor, the lender parties thereto, UBS Securities LLC, as syndication agent, joint lead
arranger and sole bookrunner, GE Capital Markets, Inc., as joint lead arranger, and General
Electric Capital Corporation, as administrative agent, as amended from time to time.




          “Existing Senior Notes” means the 7.875% senior unsecured notes due February 1, 2016,
issued by the Borrower pursuant to the Existing Senior Notes Indenture, in an aggregate principal
amount of $250,000,000.




          “Existing Senior Notes Indenture” means the Indenture in respect of the Existing
Senior Notes, dated as of August 11, 2009, between the Borrower, as issuer, and The Bank of New
York Mellon Trust Company, N.A., as indenture trustee, as supplemented by that certain First
Supplemental Indenture thereto, dated as of August 11, 2009, among the Borrower, as issuer, certain
of its Subsidiaries as guarantors, and The Bank of New York Mellon Trust Company, N.A., as
indenture trustee, and as further amended, supplemented and in effect on the Closing Date and as
the same may be amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.




          “Existing Subordinated Notes” means, collectively, the Existing 2016 Subordinated
Notes, the Existing 2018 Subordinated Notes and the Existing 2016 Subordinated Convertible Notes.




          “Existing Subordinated Notes Indentures” means, collectively, the Existing 2016
Subordinated Convertible Notes Indenture, the Existing 2016 Subordinated Notes Indenture and the
Existing 2018 Subordinated Notes Indenture.




          “Existing 2016 Subordinated Convertible Notes” means the 3% unsecured subordinated
convertible notes due May 15, 2016, issued by the Borrower pursuant to the Existing 2016
Subordinated Convertible Notes Indenture, in an aggregate principal amount of $150,000,000.




          “Existing 2016 Subordinated Convertible Notes Indenture” means the Indenture in
respect of the Existing 2016 Subordinated Convertible Notes, dated as of May 14, 2007, among the
Borrower, as issuer, and U.S. Bank Trust National Association, as indenture trustee, as in






15









 







effect on the Closing Date and as the same may be amended, modified or supplemented from time
to time in accordance with the terms hereof and thereof.




          “Existing 2016 Subordinated Notes” means the 9% unsecured subordinated notes due May
15, 2016, issued by the Borrower pursuant to the Existing 2016 Subordinated Notes Indenture, in an
aggregate principal amount of $400,000,000.




          “Existing 2016 Subordinated Notes Indenture” means the Indenture in respect of the
Existing 2016 Subordinated Notes, dated as of May 12, 2009, between the Borrower, as issuer, and
U.S. Bank National Association, as indenture trustee, as supplemented by that certain First
Supplemental Indenture thereto, dated as of May 12, 2009, among the Borrower, as issuer, certain of
its Subsidiaries as guarantors, and U.S. Bank National Association, as indenture trustee, and as
further amended, supplemented and as in effect on the Closing Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof and thereof.




          “Existing 2018 Subordinated Notes” means 8.625% unsecured subordinated notes due
October 1, 2018, issued by the Borrower pursuant to the Existing 2018 Subordinated Notes Indenture,
in an aggregate principal amount of $400,000,000.




          “Existing 2018 Subordinated Notes Indenture” means the Indenture in respect of the
Existing 2018 Subordinated Notes, dated as of May 12, 2009, between the Borrower, as issuer, and
U.S. Bank National Association, as indenture trustee, as supplemented by that certain Ninth
Supplemental Indenture thereto, dated as of September 21, 2010, among the Borrower, as issuer,
certain of its Subsidiaries as guarantors, and U.S. Bank National Association, as indenture
trustee, and as further amended, supplemented and as in effect on the Closing Date and as the same
may be amended, modified or supplemented from time to time in accordance with the terms hereof and
thereof.




          “Expiration Time” has the meaning specified in Schedule 2.21.




          “Facilities” means (a) each Initial Term Loan Facility, (b) the Delayed-Draw Term Loan
Facility, (c) each Incremental Term Loan Facility and (d) the Revolving Credit Facility.




          “FATCA” means Sections 1471 through 1474 of the Code, as enacted on the Closing Date
(and any amended or successor provisions thereto that are substantively comparable and not
materially more onerous to comply with) and the regulations promulgated thereunder or published
administrative guidance implementing such Sections of the Code.




          “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on overnight federal
funds transactions with members of the United States Federal Reserve System arranged by federal
funds brokers, as determined by the Administrative Agent in its sole discretion.




          “Federal Reserve Board” means the Board of Governors of the United States Federal
Reserve System and any successor thereto.




          “Fee Letter” means the letter agreement, dated June 2, 2011, addressed to the Borrower
from the Administrative Agent and accepted by the Borrower, with respect to certain fees to be paid
from time to time to the Administrative Agent.







16









 








          “financial “maintenance” covenants” means any financial “maintenance” covenant tested
on a periodic basis (whether stated as a covenant, event of default or other provision with similar
effect, provided that “incurrence-based” financial tests shall not be treated as a financial
“maintenance” covenant for this purpose).




          “Financial Statement” means each financial statement delivered pursuant to Section
4.4 or 6.1.




          “Fiscal Quarter” means each 3 fiscal month period ending on March 31, June 30,
September 30 or December 31.




          “Fiscal Year” means the twelve-month period ending on December 31.




          “Foreign Subsidiary” means any Subsidiary of the Borrower which is organized and
existing under the laws of any jurisdiction outside of the United States of America (which
jurisdictions outside the United States of America shall include Puerto Rico or any other territory
of the United States of America).




          “GAAP” means generally accepted accounting principles in the United States of America,
as in effect from time to time, set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants, in the statements and
pronouncements of the Financial Accounting Standards Board and in such other statements by such
other entity as may be in general use by significant segments of the accounting profession that are
applicable to the circumstances as of the date of determination. Subject to Section 1.3,
all references to “GAAP” shall be to GAAP applied consistently with the principles used in
the preparation of the Financial Statements described in Section 4.4(a).




          “Governmental Authority” means any nation, sovereign or government, any state or other
political subdivision thereof, any agency, authority or instrumentality thereof and any entity or
authority exercising executive, legislative, taxing, judicial, regulatory or administrative
functions of or pertaining to government, including any central bank, stock exchange, regulatory
body, arbitrator, public sector entity, supra-national entity (including the European Union and the
European Central Bank) and any self-regulatory organization (including the National Association of
Insurance Commissioners).




          “Group Members” means, collectively, the Borrower and each of its Subsidiaries.




          “Group Members’ Accountants” means PricewaterhouseCoopers LLP or other
nationally-recognized independent registered certified public accountants.




          “Guarantor” means each Subsidiary of the Borrower listed on Schedule 4.3(a)
that has executed and delivered the Guaranty and Security Agreement and that is not an Excluded
Foreign Subsidiary, and each other Person that enters into any Guaranty Obligation with respect to
any Obligation of any Loan Party pursuant to the Guaranty and Security Agreement.




          “Guaranty and Security Agreement” means a guaranty and security agreement, in
substantially the form of Exhibit H, among the Administrative Agent, the Borrower and the
Guarantors from time to time party thereto.







17









 








          “Guaranty Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person for any Indebtedness, lease, dividend or other
obligation (the “primary obligation”) of another Person (the “primary obligor”), if
the purpose or intent of such Person in incurring such liability, or the economic effect thereof,
is to guarantee such primary obligation or provide support or assurance to the holder of such
primary obligation or to protect or indemnify such holder against loss with respect to such primary
obligation, including (a) the direct or indirect guaranty, endorsement (other than for collection
or deposit in the ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of any primary obligation, (b) the incurrence of reimbursement obligations
with respect to any letter of credit or bank guarantee in support of any primary obligation, (c)
the existence of any Lien, or any right, contingent or otherwise, to receive a Lien, on the
property of such Person securing any part of any primary obligation (but only to the extent of the
value of such property securing such obligation) and (d) any liability of such Person for a primary
obligation through any Contractual Obligation (contingent or otherwise) or other arrangement (i) to
purchase, repurchase or otherwise acquire such primary obligation or any security therefor or to
provide funds for the payment or discharge of such primary obligation (whether in the form of a
loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency,
working capital, equity capital or any balance sheet item, level of income or cash flow, liquidity
or financial condition of any primary obligor, (iii) to make take-or-pay or similar payments, if
required, regardless of non-performance by any other party to any Contractual Obligation, (iv) to
purchase, sell or lease (as lessor or lessee) any property, or to purchase or sell services,
primarily for the purpose of enabling the primary obligor to satisfy such primary obligation or to
protect the holder of such primary obligation against loss or (v) to supply funds to or in any
other manner invest in, such primary obligor (including to pay for property or services
irrespective of whether such property is received or such services are rendered) for the purpose of
enabling the primary obligor to satisfy such primary obligation; provided, however,
that “Guaranty Obligations” shall not include (x) endorsements for collection or deposit in
the ordinary course of business and (y) product warranties given in the ordinary course of
business. The outstanding amount of any Guaranty Obligation shall equal the outstanding amount of
the primary obligation so guaranteed or otherwise supported or, if lower, the stated maximum
reasonably anticipated amount for which such Person may be liable under such Guaranty Obligation.




          “Hazardous Material” means any substance, material or waste that is classified,
regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant
or a pollutant or by other words of similar meaning or regulatory effect, including petroleum or
any fraction thereof, asbestos, polychlorinated biphenyls and radioactive substances.




          “Healthcare Laws” means (a) Federal Food, Drug and Cosmetic Act as interpreted and
enforced by the U.S. Food and Drug Administration, (b) all federal and state fraud and abuse laws,
including, but not limited to the federal Anti-Kickback Statute (42 U.S.C. §1320a-7(b)), the
federal Ethics in Patient Referrals Act (42 U.S.C. §§1395mm et. seq.), the Stark Law (42 U.S.C.
§1395nn and §1395(q)), the civil False Claims Act (31 U.S.C. §3729 et. seq.), TRICARE (10 U.S.C.
Section 1071 et. seq.), Sections 1320a-7 and 1320a-7a of Title 42 of the United States Code and the
regulations promulgated pursuant to such statutes; (c) the Health Insurance Portability and
Accountability Act of 1996 (Pub. L. No. 104-191) and the regulations promulgated thereunder; (d)
Medicare (Title XVIII of the Social Security Act) and the regulations promulgated thereunder; (e)
Medicaid (Title XIX of the Social Security Act) and the regulations promulgated thereunder; (f)
quality, safety and accreditation standards and requirements of all applicable state laws or
regulatory bodies; (g) licensure laws and regulations; and (h) any and all






18









 







other applicable medical, medical devices or health care laws, regulations, manual provisions,
policies and administrative guidance, each of (a) through (g) as may be amended from time to time.




          “Hedging Agreement” means any Interest Rate Contract, foreign exchange, swap, option
or forward contract, spot, cap, floor or collar transaction, any other derivative instrument and
any other similar speculative transaction and any other similar agreement or arrangement designed
to alter the risks of any Person arising from fluctuations in any underlying variable.




          “Immaterial Subsidiary” means any Group Member (other than Alere US Holdings, LLC)
which (a) generated less than 5% of the consolidated revenues of the Borrower and its Subsidiaries
for the fiscal period most recently ended and (b) owned less than 5% of the assets (as determined
on a book value basis) of the Borrower and its Subsidiaries on a consolidated basis for such fiscal
period; provided that no Group Member which otherwise satisfies the criteria set
forth in clauses (a) and (b) above shall be treated as an Immaterial Subsidiary in
this Agreement if (x) the aggregate revenues generated by all Immaterial Subsidiaries would exceed
10% of the consolidated revenues of the Borrower and its Subsidiaries for the fiscal period most
recently ended or (y) all Immaterial Subsidiaries own more than 10% of the assets of the
Borrower and its Subsidiaries on a consolidated basis, in each case after including such Group
Member as an Immaterial Subsidiary for purposes of calculating compliance with clauses (x)
and (y) above.




          “Inactive Subsidiaries” means, collectively, those Subsidiaries of the Borrower set
forth on Schedule 1.1(a).




          “Increasing Lender” has the meaning specified in Section 2.19(a).




          “Incremental Term Loan” has the meaning specified in Section 2.19(a).




          “Incremental Term Loan Amendment” has the meaning specified in Section
2.19(c).




          “Incremental Term Loan Commitments” has the meaning specified in Section
2.19(a).




          “Incremental Term Loan Facility” means the Incremental Term Loan Commitments and the
provisions herein related to the Incremental Term Loans.




          “Incremental Term Loan Maturity Date” means, for any Tranche of Incremental Term
Loans, the final maturity date set forth for such Tranche of Incremental Term Loans,
provided that the final maturity date for all Incremental Term Loans of a given Tranche
shall be the same date.




          “Indebtedness” of any Person means, without duplication, any of the following, whether
or not matured: (a) all indebtedness for borrowed money, (b) all obligations evidenced by notes,
bonds, debentures or similar instruments, (c) all reimbursement and all obligations with respect to
(i) letters of credit, bank guarantees or bankers’ acceptances or (ii) surety, customs, reclamation
or performance bonds (in each case not related to judgments or litigation) other than those entered
into in the ordinary course of business, (d) all obligations to pay the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course of business that
are unsecured and customary adjustments of purchase price, contingent payments, earnout payments or
similar obligations of any Group Member arising under any of the documents pertaining to a merger
or acquisition or a Sale), (e) all obligations created or arising under any conditional sale or






19









 







other title retention agreement, regardless of whether the rights and remedies of the seller
or lender under such agreement in the event of default are limited to repossession or sale of such
property, (f) all Capitalized Lease Obligations, (g) all obligations, whether or not contingent, to
purchase, redeem, repurchase, retire, defease or otherwise acquire for value (other than solely at
the option of such Person) any Disqualified Stock of such Person, in each case for cash (other than
cash in lieu of fractional shares) or in exchange for (or by other delivery of) Indebtedness or any
other Disqualified Stock, prior to the date that is 180 days after the latest Maturity Date then in
effect, valued at the maximum fixed redemption or purchase or repurchase price of such Disqualified
Stock thereunder, except, in the case of this clause (g), for any such obligations solely as a
result of a “change of control” or “asset sale”, so long as any rights of the holders thereof upon
the occurrence of such a change of control or asset sale event are subject to (unless waived by the
Required Lenders) (A) in the case of a “change of control”, (i) the prior payment in full of the
Loans and all other Obligations (other than unasserted contingent indemnification obligations),
(ii) the cancellation or expiration of all Letters of Credit (or the cash collateralization of all
L/C Obligations at face value plus the amount of fees accruing thereon through expiration of the
applicable Letters of Credit) and (iii) the termination of the Commitments and (B) in the case of
an “asset sale”, the net cash proceeds therefrom being applied to the Obligations as provided for
in this Agreement, (h) the net amount of all payments that would be required to be made in respect
of any Hedging Agreement in the event of a termination (including an early termination) on the date
of determination, and (i) all Guaranty Obligations for obligations of any other Person constituting
Indebtedness of such other Person; provided, however, that the items in each of
clauses (a) through (h) above shall constitute “Indebtedness” of such Person solely
to the extent, directly or indirectly, (x) such Person is liable for any part of any such item, (y)
any such item is secured by a Lien on such Person’s property or (z) any other Person has a right,
contingent or otherwise, to cause such Person to become liable for any part of any such item or to
grant such a Lien. Any amount of any Indebtedness for which recourse is expressly limited to a
specific asset shall be limited to the fair market value of such asset.




          “Indemnified Matters” has the meaning specified in Section 11.4.




          “Indemnitee” has the meaning specified in Section 11.4.




          “Individual Exposure” of any Lender means, at any time, the sum of (a) the aggregate
principal amount of all Revolving Loans made by such Lender and then outstanding, (b) such Lender’s
Revolving Credit Percentage in the aggregate principal amount of all Swing Loans then outstanding
and (c) such Lender’s Revolving Credit Percentage in the aggregate amount of all L/C Obligations at
such time.




          “Initial Projections” means those financial projections covering the Fiscal Years
ending in 2011 through 2017 and delivered to the Administrative Agent by the Borrower prior to the
date hereof.




          “Initial Term Loan” means, collectively, each A Term Loan and each B Term Loan.




          “Initial Term Loan Commitment” means, collectively, the A Term Loan Commitment and the
B Term Loan Commitment.




          “Initial Term Loan Facility” means the Initial Term Loan Commitments and the
provisions herein related to the Initial Term Loans.







20









 








          “Intellectual Property” means all rights, title and interests in or relating to
intellectual property and industrial property arising under any Requirement of Law and all IP
Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks, Internet Domain
Names, Trade Secrets and IP Licenses.




          “Interest Period” means, with respect to any Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is made or converted to a Eurodollar Rate Loan or,
if such loan is continued, on the last day of the immediately preceding Interest Period therefor
and, in each case, ending 1, 2, 3 or 6 months thereafter, as selected by the Borrower;
provided, however, that (a) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to the next succeeding Business
Day, unless the result of such extension would be to extend such Interest Period into another such
Business Day falls in the next calendar month, in which case such Interest Period shall end on the
immediately preceding Business Day, (b) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of a calendar month,
(c) the Borrower may not select any Interest Period in respect of any Tranche of Loans ending after
the Maturity Date for such Tranche of Loans, (d) the Borrower may not select any Interest Period in
respect of Loans having an aggregate principal amount of less than $1,000,000 and (e) there shall
be outstanding at any one time no more than 10 Interest Periods (or such greater number as may be
permitted by the Administrative Agent).




          “Interest Rate Contracts” means all interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and interest rate insurance.




          “Internet Domain Names” means all right, title and interest (and all related IP
Ancillary Rights) relating to Internet domain names.




          “Investment” means, with respect to any Person, directly or indirectly, (a) to own,
purchase or otherwise acquire, in each case whether beneficially or otherwise, any investment in,
including any interest in, any Security of any other Person (other than any evidence of any
Obligation), (b) to purchase or otherwise acquire, whether in one transaction or in a series of
transactions, all or a significant part of the property of any other Person or a business conducted
by any other Person or all or substantially all of the assets constituting the business of a
division, branch, brand or other unit operation of any other Person, (c) to incur, or to remain
liable under, any Guaranty Obligation for Indebtedness of any other Person, to assume the
Indebtedness of any other Person or to make, hold, purchase or otherwise acquire, in each case
directly or indirectly, any loan, advance, commitment to lend or advance, or other extension of
credit (including by deferring or extending the date of, in each case outside the ordinary course
of business, the payment of the purchase price for Sales of property or services to any other
Person, to the extent such payment obligation constitutes Indebtedness of such other Person),
excluding deposits with financial institutions available for withdrawal on demand, prepaid
expenses, accounts receivable and similar items created in the ordinary course of business, (d) to
make, directly or indirectly, any contribution to the capital of any other Person or (e) to Sell
any property for less than fair market value (including a disposition of cash or Cash Equivalents
in exchange for consideration of lesser value); provided, however, that such
Investment shall be valued at the difference between the value of the consideration for such Sale
and the fair market value of the property Sold.







21









 








          “IP Ancillary Rights” means, with respect to any Intellectual Property, as applicable,
all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part,
reissues, reexaminations, renewals and extensions of, such Intellectual Property and all income,
royalties, proceeds and Liabilities at any time due or payable or asserted under or with respect to
any of the foregoing or otherwise with respect to such Intellectual Property, including all rights
to sue or recover at law or in equity for any past, present or future infringement,
misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to
obtain any other IP Ancillary Right.




          “IP License” means all Contractual Obligations (and all related IP Ancillary Rights),
whether written or oral, granting any right, title and interest in or relating to any Intellectual
Property.




          “IRS” means the Internal Revenue Service of the United States and any successor
thereto.




          “Issue” means, with respect to any Letter of Credit, to issue, extend the expiration
date of, renew (including by failure to object to any automatic renewal on the last day such
objection is permitted), increase the face amount of, or reduce or eliminate any scheduled decrease
in the face amount of, such Letter of Credit, or to cause any Person to do any of the foregoing.
The terms “Issued” and “Issuance” have correlative meanings.




          “Junior Indebtedness” means any Indebtedness in respect of the Existing Notes (and any
Permitted Refinancing of the Existing Notes), any Subordinated Debt, any Permitted Acquisition Debt
under clause (i) of the definition thereof (and any Permitted Refinancing thereof) incurred
in reliance on Section 8.1(i) and any Permitted Additional Debt (including any Permitted
Refinancing thereof) incurred in reliance on Section 8.1(n), whether unsecured or secured
by a Lien ranking either pari passu with or junior to the Lien securing the
Obligations.




          “L/C Back-Stop Arrangements” has the meaning specified in Section 2.20(a)(ii).




          “L/C Cash Collateral Account” means any Cash Collateral Account (a) specifically
designated as such by the Borrower in a notice to the Administrative Agent and (b) from and after
the effectiveness of such notice, not containing any funds other than those required under the Loan
Documents to be placed therein.




          “L/C Exposure” means, at any time, the aggregate amount of all L/C Obligations at such
time in respect of Letters of Credit. The L/C Exposure of any Revolving Credit Lender at any time
shall be its Revolving Credit Percentage of the aggregate L/C Exposure at such time.




          “L/C Issuer” means (a) GE Capital or any of its designated Affiliates and (b) each
Person that hereafter becomes an L/C Issuer with the approval of, and pursuant to an agreement with
and in form and substance satisfactory to, the Administrative Agent, the Borrower and such Person
to become an L/C Issuer in each case in their capacity as L/C Issuers hereunder and together with
their successors.




          “L/C Obligations” means, for any Letter of Credit at any time, the sum of (a) the L/C
Reimbursement Obligations at such time for such Letter of Credit and (b) the aggregate maximum
undrawn face amount of such Letter of Credit outstanding at such time.




          “L/C Reimbursement Agreement” has the meaning specified in Section 2.4(a).







22









 








          “L/C Reimbursement Date” has the meaning specified in Section 2.4(e).




          “L/C Reimbursement Obligation” means, for any Letter of Credit, the obligation of the
Borrower to the L/C Issuer thereof, as and when matured, to pay all amounts drawn under such Letter
of Credit.




          “L/C Request” has the meaning specified in Section 2.4(b).




          “L/C Sublimit” means $50,000,000.




          “Lender Default” means, as to any Revolving Credit Lender or, during the period prior
to the Delayed-Draw Term Loan Commitment Termination Date, any Delayed-Draw Term Loan Lender, as
applicable, (i) the wrongful refusal (which has not been retracted) of such Lender or the failure
of such Lender (which has not been cured) to make available its portion of any Borrowing or, in the
case of a Revolving Credit Lender, to fund its portion of any unreimbursed payment with respect to
a Letter of Credit pursuant to Section 2.4(f), (ii) such Revolving Credit Lender or
Delayed-Draw Term Loan Lender having been adjudicated insolvent or having become the subject of a
bankruptcy or insolvency proceeding or a takeover by a regulatory authority, in either case as of,
or at any time following, the Closing Date, or (iii) such Revolving Credit Lender or Delayed-Draw
Term Loan Lender having notified the Administrative Agent, the Swingline Lender, any L/C Issuer
and/or any Loan Party (x) that it does not intend to comply with its obligations under Sections
2.1(a), (b)(iii), (b)(iv) or 2.3(a) or Section 2.4, as the case
may be, in circumstances where such non-compliance would constitute a breach of such Revolving
Credit Lender’s or Delayed-Draw Term Loan Lender’s obligations under the respective Section or (y)
of the events described in preceding clause (ii); provided that, as of any date of
determination, the determination of whether any Revolving Credit Lender or Delayed-Draw Term Loan
Lender is a Defaulting Lender hereunder shall not take into account, and shall not otherwise
impair, any amounts funded by such Revolving Credit Lender or Delayed-Draw Term Loan Lender (as
applicable) which have been assigned by such Revolving Credit Lender or Delayed-Draw Term Loan
Lender (as applicable) to an SPV pursuant to Section 11.2(f); provided
further that, for purposes of (and only for purposes of) Section 2.20 and any
documentation entered into pursuant to the L/C Back-Stop Arrangements (and the term “Defaulting
Lender” as used therein), the term “Lender Default” shall also include, as to any Revolving
Credit Lender or Delayed-Draw Term Loan Lender, (i) any Affiliate of such Revolving Credit Lender
or Delayed-Draw Term Loan Lender that has “control” (within the meaning provided in the definition
of “Affiliate”) of such Revolving Credit Lender or Delayed-Draw Term Loan Lender having been
adjudicated insolvent or having become the subject of a bankruptcy or insolvency proceeding or a
takeover by a regulatory authority, in either case as of, or at any time following, the Closing
Date (ii) any previously cured “Lender Default” of such Revolving Credit Lender or Delayed-Draw
Term Loan Lender under this Agreement, unless such Lender Default has ceased to exist for a period
of at least 90 consecutive days, (iii) any default by such Revolving Credit Lender or Delayed-Draw
Term Loan Lender with respect to its funding obligations under any two or more other credit
facilities to which it is a party and which the Swingline Lender, any L/C Issuer or the
Administrative Agent reasonably believes in good faith has occurred and is continuing, and (iv) the
failure of such Revolving Credit Lender or Delayed-Draw Term Loan Lender to make available its
portion of any Borrowing or, in the case of any Revolving Credit Lender to fund its portion of any
unreimbursed payment with respect to a Letter of Credit pursuant to Section 2.4(f) within 3
Business Days of the date (x) the Administrative Agent (in its capacity as a Lender) or (y)
Revolving Credit Lenders or the Delayed-Draw Term Loan Lenders constituting the Majority Lenders
with Revolving Credit Commitments or Delayed-Draw Term Loan Commitments, as the






23









 







case may be, has or have, as applicable, funded its or their portion thereof; provided
that a Lender shall not be subject to a Lender Default solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or indirect parent company thereof
by a Governmental Authority so long as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender.




          “Lenders” means, collectively, the Swingline Lender and any other financial
institution or other Person that (a) is listed on the signature pages hereof as a “Lender”,
(b) from time to time becomes a party hereto by execution of an Assignment, in each case together
with its successors or (c) becomes a party hereto in connection with an Incremental Term Loan
Commitment by execution of an Incremental Term Loan Amendment in connection with such Incremental
Term Loan Commitment.




          “Letter of Credit” means any letter of credit Issued pursuant to Section 2.4.




          “Liabilities” means all claims, actions, suits, judgments, damages, losses, liability,
obligations, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements
and expenses, in each case of any kind or nature (including interest accrued thereon or as a result
thereof and fees, charges and disbursements of financial, legal and other advisors and
consultants), whether joint or several, whether or not indirect, contingent, consequential, actual,
punitive, treble or otherwise.




          “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment for
security, charge, security deposit arrangement, encumbrance, easement, lien (statutory or other),
security interest or other security arrangement and any other preference, priority or preferential
arrangement of any kind or nature whatsoever, including any conditional sale contract or other
title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or
other financing lease having substantially the same economic effect as any of the foregoing.




          “Loan” means any loan made or deemed made by any Lender hereunder.




          “Loan Documents” means, collectively, this Agreement, any Notes, the Guaranty and
Security Agreement, the Mortgages, the Swiss Pledge Agreement, the Control Agreements, the Fee
Letter, the L/C Reimbursement Agreements, the Secured Hedging Agreements, the Secured Treasury
Services Agreements and, when executed, each document executed by a Loan Party and delivered to the
Administrative Agent, any Lender or any L/C Issuer in connection with or pursuant to any of the
foregoing or the Obligations, together with any modification of any term, or any waiver with
respect to, any of the foregoing.




          “Loan Party” means the Borrower and each Guarantor.




          “Majority Lenders” of any Tranche means those Non-Defaulting Lenders which would
constitute the Required Lenders under, and as defined in, this Agreement if all outstanding
Obligations under the other Tranches under this Agreement were repaid in full and all Commitments
with respect thereto were terminated.




          “Margin Stock” has the meaning provided in Regulation U of the Federal Reserve Board.







24









 








          “Material Adverse Effect” means an effect that results in or causes, or could
reasonably be expected to result in or cause, a material adverse change in any of (a) the condition
(financial or otherwise), business, performance, prospects, operations or property of the Group
Members, taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform their
obligations under any Loan Document and (c) the validity or enforceability of any Loan Document or
the rights and remedies of the Administrative Agent, the Lenders and the other Secured Parties
under any Loan Document.




          “Maturity Date” means, with respect to the relevant Tranche of Loans, the Scheduled A
Term Loan Maturity Date, the Scheduled B Term Loan Maturity Date, the Scheduled Revolving Credit
Termination Date or the applicable Incremental Term Loan Maturity Date, as the case may be.




          “Maximum Lawful Rate” has the meaning specified in Section 2.9(d).




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




          “Mortgage” means any mortgage, deed of trust or other document executed or required
herein to be executed by any Loan Party and granting a security interest over real property in
favor of the Administrative Agent as security for the Obligations.




          “Mortgage Supporting Documents” means, with respect to any Mortgage for a parcel of
owned real property, each document (including (i) title insurance policies or marked-up
unconditional insurance binders (in each case, together with copies of all documents referred to
therein), (ii) ALTA (or TLTA, if applicable) as-built surveys (in form and as to date that is
sufficiently acceptable to the title insurer issuing title insurance to the Administrative Agent
for such title insurer to deliver endorsements to such title insurance as reasonably requested by
the Administrative Agent), (iii) environmental assessments and reports, (iv) evidence regarding
recording and payment of fees, insurance premium and taxes, (v) “life of loan” Federal Emergency
Management Agency Standard Flood Hazard Determinations with respect to each real property covered
by a Mortgage, in form and substance reasonably acceptable to the Administrative Agent (together
with notice about special flood hazard area status and flood disaster assistance, duly executed by
the Borrower and any applicable Subsidiary, and evidence of flood insurance, in the event any
improved parcel of real property or a portion thereof is located in a special flood hazard area)
and (vi) any estoppels, assignments, subordination agreements and other additional documentation,
information and certifications, in each of the foregoing cases that the Administrative Agent may
reasonably request, to create, register, perfect, maintain, evidence the existence, substance, form
or validity of or enforce a valid lien on and perfected security interest in such parcel of real
property in favor of the Administrative Agent for the benefit of the Secured Parties, subject only
to Permitted Liens or other Liens as the Administrative Agent may approve (provided that such
approval shall not be unreasonably withheld if such other Lien is affirmatively insured under a
lender’s title insurance policy).




          “Multiemployer Plan” means any multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any ERISA Affiliate contributes to or has contributed to within the last 6 years or
otherwise has any obligation or liability, contingent or otherwise.




          “Net Cash Proceeds” means proceeds received in cash from (a) any Sale of, or Property
Loss Event with respect to, property, net of (i) the out-of-pocket cash costs, fees and expenses
paid or required to be paid in connection therewith, (ii) taxes paid or reasonably estimated to be






25









 







payable as a result thereof and (iii) any amount required to be paid or prepaid on
Indebtedness (other than the Obligations and Indebtedness owing to any Group Member) secured by the
property subject thereto or (b) any incurrence of Indebtedness or (solely for purposes of the last
paragraph of Section 8.3) issuance of any Stock, in each case net of brokers’, advisors’
and investment banking fees and other out-of-pocket underwriting discounts, commissions and other
out-of-pocket cash costs, fees and expenses, in each case incurred in connection with such
transaction; provided, however, that any such proceeds received by any Subsidiary
of the Borrower that is not a Wholly Owned Subsidiary of the Borrower shall constitute “Net
Cash Proceeds” only to the extent of the aggregate direct and indirect beneficial ownership
interest of the Borrower therein.




          “New Lender” has the meaning specified in Section 2.19(b).




          “Non-Defaulting Lender” means and includes each Lender, Delayed-Draw Term Loan Lender
or Revolving Credit Lender, as the case may be, which is not a Defaulting Lender.




          “Non-Funding Lender” has the meaning specified in Section 2.2(c).




          “Non-U.S. Lender Party” means each of the Administrative Agent, each Lender, each L/C
Issuer, each SPV and each participant, in each case that is not a Domestic Person.




          “Note” means a promissory note of the Borrower, in substantially the form of
Exhibit B-1, B-2, B-3, B-4 or B-5, as applicable, payable
to a Lender or its registered assigns in any Facility in a principal amount equal to the amount of
such Lender’s Commitment under such Facility (or, in the case of the Term Loan Facility, the
aggregate initial principal amount of the Term Loans made by such Lender).




          “Notice of Borrowing” has the meaning specified in Section 2.2.




          “Notice of Conversion or Continuation” has the meaning specified in Section
2.10(b).




          “Obligations” means, with respect to any Loan Party, all amounts, obligations,
liabilities, covenants and duties of every type and description owing by such Loan Party to the
Administrative Agent, any Lender, any L/C Issuer, any other Indemnitee, any participant, any SPV,
any Secured Hedging Counterparty or any Secured Treasury Services Creditor arising out of, under,
or in connection with, any Loan Document, whether direct or indirect (regardless of whether
acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not,
now existing or hereafter arising and however acquired, and whether or not evidenced by any
instrument or for the payment of money, including, without duplication, (a) if such Loan Party is
the Borrower, all Loans and L/C Obligations, (b) all interest, whether or not accruing after the
filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or
similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed
in any such proceeding, and (c) all other fees, expenses (including reasonable fees, charges and
disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities and
reimbursement of amounts paid and other sums chargeable to such Loan Party pursuant to any Loan
Document (including those payable to L/C Issuers as described in Section 2.11).




          “Other Taxes” has the meaning specified in Section 2.17(c).







26









 








          “P&G Call Option” means the ability of a member of the P&G JV Companies to require a
breaching member (or any of its affiliates) to sell its units or shares in the P&G JV Companies
(less damages arising from the material breach) to the non-breaching member (or any of its
affiliates) pursuant to the P&G JV Agreements.




          “P&G Holdings Guaranty” means that certain guaranty dated May 17, 2007 made by the
Borrower in respect of the P&G Joint Venture.




          “P&G Joint Venture” means the joint venture between the Borrower and The Proctor &
Gamble Company conducted through the P&G JV Companies pursuant to the P&G JV Agreements for the
purpose of developing, acquiring and marketing consumer diagnostic and monitoring products
(excluding products in the cardiology, diabetes and oral care fields).




          “P&G JV Agreements” means the agreements set forth on Schedule 4.3(b) hereto.




          “P&G JV Capital Call Obligations” means any capital call obligation of the P&G JV
Companies under the P&G JV Agreements, or any guaranty thereof by the Borrower pursuant to the P&G
Holdings Guaranty.




          “P&G JV Companies” means US CD LLC, a Delaware limited liability company, and SPD
Swiss Precision Diagnostics GmbH, a company organized under the laws of Switzerland and any
subsidiaries of either of them.




          “P&G Put Date” means the date the P&G Put Option is exercised.




          “P&G Put Option” means the exercise of Procter & Gamble International Operations, SA’s
(“PGIO”) or Procter & Gamble RHD, Inc.’s (“PGUS”) right to require the Borrower or
Swissco (or any other Subsidiary of the Borrower) to purchase PGIO’s and PGUS’s units and shares
(or any other equity interests) in the P&G JV Companies pursuant to the P&G JV Agreements.




          “Patents” means all right, title and interest (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to patents and applications therefor.




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




          “PBGC” means the United States Pension Benefit Guaranty Corporation and any successor
thereto.




          “Pension Plan” means a Plan described in Section 3(2) of ERISA




          “Permit” means, with respect to any Person, any permit, approval, authorization,
license, registration, certificate, concession, grant, franchise, variance or permission from, and
any other Contractual Obligations in the nature of any of the foregoing with, any Governmental
Authority, in each case whether or not having the force of law, and applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject.




          “Permitted Acquisition” means any Proposed Acquisition satisfying each of the
following conditions: (a) except with respect to (i) any Proposed Acquisition having Permitted
Acquisition






27









 







Consideration of less than $25,000,000 or (ii) any Proposed Acquisition set forth on
Schedule 8.3A, the Administrative Agent shall have received reasonable advance notice of
such Proposed Acquisition including a reasonably detailed description thereof at least 15 days
prior to the consummation of such Proposed Acquisition (or such later date as may be agreed by the
Administrative Agent) and on or prior to the date of such Proposed Acquisition, the Administrative
Agent shall have received copies of the acquisition agreement and related material Contractual
Obligations and other material documents and information (including financial information and
analysis, environmental assessments and reports, opinions, certificates and lien searches), in each
of the foregoing cases as reasonably requested by the Administrative Agent, (b) as of the date of
consummation of any transaction as part of such Proposed Acquisition and after giving effect to all
transactions to occur on such date as part of such Proposed Acquisition, no Default or Event of
Default shall be continuing, (c) after giving effect to such Proposed Acquisition, the Borrower
shall be in compliance with the financial covenants set forth in Article V (but assuming
for the purpose of such compliance with the maximum Consolidated Secured Leverage Ratio set forth
in Section 5.1, that the maximum Consolidated Secured Leverage Ratio permitted at such time
was 4.25:1.00) on a Pro Forma Basis as of the last day of the last Fiscal Quarter for which
Financial Statements have been delivered hereunder for the four Fiscal Quarter period ending on
such day (as if such Permitted Acquisition had occurred on the first day of such period), (d) both
before and immediately after giving effect to such Proposed Acquisition, the Loan Parties shall
have unused Revolving Credit Commitments and available cash and Cash Equivalents on deposit to a
Cash Collateral Account, a Controlled Deposit Account or a Controlled Securities Account of at
least $150,000,000 in the aggregate, and (e) at or prior to the closing of such Proposed
Acquisition, the Borrower shall deliver to the Administrative Agent a certificate of the Chief
Financial Officer, Treasurer or Vice President, Finance of the Borrower to the effect that the
conditions in clauses (b), (c) and (d) above have been satisfied and
setting forth the calculation thereof, which certificate shall be a form reasonably satisfactory to
the Administrative Agent (provided that no such certificate shall be required for any
Proposed Acquisition having Permitted Acquisition Consideration of less than $25,000,000). For
purposes of preceding clauses (a)(i) and (e), to the extent that any Permitted Acquisition
Consideration is in the form of an earn-out or other deferred payment obligation that is to be paid
over time or from time to time, only the aggregate amount thereof that is reasonably estimated to
be paid by the Borrower or its Subsidiary in connection with such Permitted Acquisition (as
determined in good faith by a Responsible Officer of the Borrower) shall be included in the
calculation of the aggregate amount of the Permitted Acquisition Consideration for such Permitted
Acquisition for purposes of determining whether the notice and officer’s certificate referred to in
preceding clauses (a)(i) and (e) need to be delivered. “Permitted Acquisition” also
includes any proposed merger or acquisition consented to by the Required Lenders.




          “Permitted Acquisition Consideration” means aggregate amounts payable in connection
with, and other consideration for, any Permitted Acquisition, in each case, including, if and when
earned, any “earnout” and similar payment obligations, all transaction costs and all Indebtedness,
liabilities and Guaranty Obligations incurred or assumed in connection therewith or otherwise
reflected in a Consolidated balance sheet of the Borrower and the Proposed Acquisition Target.




          “Permitted Acquisition Debt” means Indebtedness which satisfies each of the following
conditions: (a) the Indebtedness is either (i) unsecured Indebtedness of the Borrower or any of
its Subsidiaries that is issued or incurred to any seller or sellers (or any shareholder(s),
affiliate(s), designee(s), successor(s) and/or assign(s) thereof) or otherwise as consideration
pursuant to the






28









 







terms of a Permitted Acquisition and/or (ii) Indebtedness assumed in connection
with any
Permitted Acquisition (but not incurred in connection with or contemplation of such Permitted
Acquisition), (b) except in respect of any Permitted Acquisition Debt incurred, issued or assumed
in connection with any Proposed Acquisition having Permitted Acquisition Consideration of less than
$25,000,000, the Administrative Agent shall have received reasonable advance notice of the
incurrence, issuance and/or assumption of such Indebtedness including a reasonably detailed
description thereof at least 15 days prior to such incurrence, issuance and/or assumption (or such
later date as may be agreed by the Administrative Agent) and on or prior to the date of such
incurrence, issuance and/or assumption, the Administrative Agent shall have received copies of the
credit agreement, indenture and related Contractual Obligations and other documents and
information, in each of the foregoing cases as reasonably requested by the Administrative Agent,
(c) as of the date of incurrence, issuance and/or assumption of such Indebtedness and after giving
effect to all transactions to occur on such date (including such Permitted Acquisition), no Default
or Event of Default shall be continuing, (d) after giving effect to the incurrence, issuance and/or
assumption of such Indebtedness and such Permitted Acquisition, the Borrower shall be in compliance
with (x) the financial covenants set forth in Article V (but assuming for the purpose of such
compliance with the maximum Consolidated Secured Leverage Ratio set forth in Section 5.1, that the
maximum Consolidated Secured Leverage Ratio permitted at such time was 4.25:1.00) and (y) a
Consolidated Total Leverage Ratio of no greater than 7.00:1.00, in the case of (x) and (y) on a Pro
Forma Basis as of the last day of the last Fiscal Quarter for which Financial Statements have been
delivered hereunder for the four Fiscal Quarter period ending on such day (as if such Indebtedness
had been incurred, issued or assumed and such Permitted Acquisition had occurred on the first day
of such period), and (e) at or prior to the incurrence, issuance and/or assumption of such
Indebtedness (or at such later time as the Administrative Agent may approve), the Borrower shall
deliver to the Administrative Agent a certificate of the Chief Financial Officer, Treasurer or Vice
President, Finance of the Borrower to the effect that the conditions in clauses (c) and (d) above
have been satisfied and setting forth the calculation thereof, which certificate shall be a form
reasonably satisfactory to the Administrative Agent (provided that no such certificate shall be
required for any Permitted Acquisition Debt being incurred or issued to finance any Proposed
Acquisition having Permitted Acquisition Consideration of less than $25,000,000), and provided
further that only one certificate shall be required for Permitted Acquisition Debt that may be
incurred or issued in multiple tranches over time and from time to time in accordance with the
obligations or commitments existing in the transaction documents for such Permitted Acquisition
Debt and the related Permitted Acquisition at the time of the closing of such Permitted Acquisition
(such certificate to be delivered at or prior to the time of the first incurrence or issuance of
such Permitted Acquisition Debt or such later time as the Administrative Agent may agree). For
purposes of (i) preceding clauses (c) and (d), to the extent that any Permitted Acquisition Debt is
to be incurred or issued over time or from time to time, the full amount of all such Permitted
Acquisition Debt shall be deemed incurred and/or issued at the time of the initial incurrence or
issuance thereof (and to the extent that any portion of such Permitted Acquisition Debt constitutes
any deferred payment obligation incurred or to be incurred
 in reliance on clause (a)(i) above, the
amount thereof for the purposes of such calculation shall be the amount certified by a Responsible
Officer of the Borrower as being the maximum amount reasonably expected to be payable in connection
therewith and (ii) preceding clauses (b)and (e), to the extent that any Permitted Acquisition
Consideration is in the form of an earn-out or other deferred payment obligation that is to be paid
over time or from time to time, only the aggregate amount thereof that is reasonably estimated to
be paid by the Borrower or its Subsidiary in connection with such Permitted Acquisition (as
determined in good faith by a Responsible Officer of the Borrower) shall be included in the
calculation of the aggregate amount






29









 







of the Permitted Acquisition Consideration for such Permitted
Acquisition for purposes of
determining whether the notice and officer’s certificate referred to in preceding clauses (b)
and (e) need to be delivered).




          “Permitted Additional Debt” means Indebtedness (which Indebtedness may be (i) (x)
senior or (y) Subordinated Debt and (ii) (x) unsecured or (y) in the case of senior Indebtedness
only, secured by a Lien ranking pari passu with, or junior to, the Lien securing
the Obligations, in each case issued or incurred by the Borrower), the terms of which Indebtedness
satisfy each of the following conditions: (a) except with respect to Permitted Additional Debt of
less than $10,000,000, the Administrative Agent shall have received reasonable advance notice of
the incurrence or issuance of such Indebtedness including a reasonably detailed description thereof
at least 15 days prior to such incurrence or issuance (or such later date as may be agreed by the
Administrative Agent) and on or prior to the date of such incurrence or issuance, the
Administrative Agent shall have received copies of any related loan agreement, indenture or other
instrument evidencing such Indebtedness and related Contractual Obligations and other documents and
information, in each of the foregoing cases as reasonably requested by the Administrative Agent,
(b) such Indebtedness shall not be subject to any scheduled amortization, mandatory redemption,
mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each
case, (x) customary offers to repurchase upon a change of control, asset sale or event of loss and
acceleration rights after an event of default, and (y) any such amortization, redemption,
repayment, sinking fund or other payment at the sole option of the Borrower) or have a final
maturity date, in either case prior to the date occurring 180 days following the latest Maturity
Date then in effect, (c) the loan agreement, indenture or other applicable instrument or agreement
governing such Indebtedness (including any related guaranties and collateral) shall not include any
financial “maintenance” covenants (whether stated as a covenant, default or otherwise, although
“incurrence-based” financial tests may be included), (d) if such Indebtedness is Subordinated Debt,
it satisfies the requirements set forth in the definition of “Subordinated Debt”, (e) as of the
date of incurrence or issuance of such Indebtedness and after giving effect to all transactions to
occur on such date, no Default or Event of Default is continuing, (f) such Indebtedness does not
provide for any mandatory repayment or redemption from asset sales, casualty or condemnation events
or excess cash flow on more than a ratable basis with the Loans; (g) such Indebtedness, if
secured, shall not be secured by any Lien on any asset of any Loan Party that does not also secure
the Obligations, and, if guaranteed, shall not be guaranteed by any Group Member other than the
Guarantors, (h) the holders of such Indebtedness (or the respective agent or trustee on their
behalf), if such Indebtedness is secured, shall have entered into an intercreditor agreement with
the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent,
(i) the Borrower shall be in compliance with (x) the financial covenants set forth in Article
V (but assuming for the purpose of such compliance with the maximum Consolidated Secured
Leverage Ratio set forth in Section 5.1, that the maximum Consolidated Secured Leverage
Ratio permitted at such time was 4.25:1.00) and (y) a Consolidated Total Leverage Ratio of no
greater than 7.00:1.00, in the case of (x) and (y) on a Pro Forma Basis as of the last day of the
last Fiscal Quarter for which Financial Statements have been or are required to be delivered
hereunder pursuant to Section 6.1 for the four Fiscal Quarter period ending on such day (as
if such Indebtedness had been incurred or issued on the first day of such period), and (j) at or
prior to the incurrence and/or issuance of such Indebtedness (or at such later time as the
Administrative Agent may approve), the Borrower shall deliver to the Administrative Agent a
certificate of its Chief Financial Officer, Treasurer or Vice President, Finance to the effect that
the conditions in clause (i) above have been satisfied and setting forth the calculation
thereof, which certificate






30









 







shall be in a form reasonably
satisfactory to the Administrative Agent (provided that no such certificate shall be
required for Permitted Additional Debt of less than $10,000,000).




          “Permitted Additional Debt Documents” means, on and after the execution and delivery
thereof by any Group Member, each note, instrument, agreement, guaranty, security agreement,
mortgage and other document relating to each incurrence or issuance of Permitted Additional Debt,
as the same may be amended, modified and/or supplemented from time to time in accordance with the
terms hereof and thereof.




          “Permitted Indebtedness” means any Indebtedness of any Group Member that is not
prohibited by Section 8.1.




          “Permitted Investment” means any Investment of any Group Member that is not prohibited
by Section 8.3.




          “Permitted Lien” means any Lien on or with respect to the property of any Group Member
that is not prohibited by Section 8.2.




          “Permitted Refinancing” means Indebtedness (including Guaranty Obligations of Group
Members in respect thereof) constituting a refinancing, extension of maturity or other
modifications of the terms of Permitted Indebtedness to the extent provided for in Section
8.1 (including any Permitted Refinancing of any such Permitted Refinancing Indebtedness) (a)
that has an aggregate outstanding principal amount not greater than the aggregate principal amount
of such Permitted Indebtedness being refinanced or extended (plus accrued and unpaid interest and
premium payable on the Permitted Indebtedness being refinanced) outstanding at the time of such
refinancing or extension, (b) (i) to the extent such Indebtedness refinances or extends Permitted
Indebtedness other than Indebtedness represented by the Existing Notes (excluding for this purpose
the Existing 2018 Subordinated Notes), that has a weighted average maturity (measured as of the
date of such refinancing or extension) no shorter than that of such Permitted Indebtedness being
refinanced or extended (as of the date immediately prior to such refinancing or extension) and (ii)
to the extent such Indebtedness refinances or extends Permitted Indebtedness represented by the
Existing Notes (excluding for this purpose the Existing 2018 Subordinated Notes), that is not
subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory
prepayment, sinking fund or similar payment (other than, in each case, (x) customary offers to
repurchase upon a change of control, asset sale or event of loss and acceleration rights after an
event of default, and (y) any of the foregoing at the sole option of the Borrower) or have a final
maturity date, in either case prior to the date occurring 180 days following the latest Maturity
Date then in effect, (c) that is not secured by any property or any Lien other than those securing
such Permitted Indebtedness being refinanced or extended, provided such Lien shall have the same
priority as the Lien securing such Permitted Indebtedness being refinanced or extended, (d) that is
subordinated to the Obligations on terms no less favorable (in the reasonable judgment of the
Administrative Agent) to the holders of the Obligations as the Permitted Indebtedness being
refinanced or extended, (e) (i) to the extent such Indebtedness refinances or extends any Permitted
Indebtedness that includes any financial “maintenance” covenants, that does not include any
additional or new financial “maintenance” covenants or make existing financial “maintenance”
covenants more restrictive in any material respect and (ii) to the extent that such indebtedness
refinances or extends any Permitted Indebtedness that does not include any financial “maintenance”
covenants, that does not include any financial “maintenance” covenants and (f) does not benefit
from any Guaranty Obligation






31









 







other than any Guaranty Obligation benefitting such Permitted Indebtedness being refinanced or
extended immediately prior to such refinancing or extension.




          “Permitted Reinvestment” means, with respect to the Net Cash Proceeds of any Sale or
Property Loss Event, to acquire (or make Capital Expenditures to finance the acquisition, repair,
improvement or construction of), to the extent otherwise permitted hereunder, property useful in
the business of the Borrower or any of its Subsidiaries (including through a Permitted Acquisition)
or, if such Property Loss Event involves loss or damage to property, to repair such loss or damage.




          “Permitted Stock Repurchases” means any repurchase, redemption, retirement,
termination, defeasance, cancellation or other purchase by the Borrower of Stock or Stock
Equivalents of the Borrower on or after the Closing Date satisfying each of the following
conditions: (a) as of the date of consummation of any such repurchase, redemption, retirement or
other purchase and after giving effect thereto on such date, no Default or Event of Default shall
be continuing, (b) both immediately before and immediately after giving effect to such repurchase,
redemption, retirement, termination, defeasance, cancellation or other purchase, the sum of (I)
Revolver Availability and (II) the aggregate amount of Unrestricted cash and Cash Equivalents of
the Loan Parties shall be at least $150,000,000, and (c) the aggregate consideration paid by the
Group Members for all such repurchases, redemptions, retirements, terminations, defeasances,
cancellations or other purchases, without duplication, on or after the Closing Date shall not
exceed $300,000,000.




          “Person” means any individual, partnership, corporation (including a business trust
and a public benefit corporation), joint stock company, estate, association, firm, enterprise,
trust, limited liability company, unincorporated association, joint venture and any other entity or
Governmental Authority.




          “Preferred Stock”, as applied to the Stock of any Person, means Stock of such Person
(other than common Stock of such Person) of any class or classes (however designed) that ranks
prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of Stock of any other
class of such Person, and shall include any Disqualified Stock.




          “Pro Forma Basis” means, in connection with any calculation of compliance with any
financial covenant ratio or financial term as it relates to any determination for any period and
any Pro Forma Transaction, that such determination shall be made by giving pro forma effect to each
such Pro Forma Transaction after the first day of the relevant period (including, in the case of
any Permitted Acquisition, any Pro Forma Cost Savings directly attributable to such Pro Forma
Transaction and, in the case of the incurrence of any Indebtedness, assuming that the proceeds
thereof are applied), as if each such Pro Forma Transaction had been consummated on the first day
of such period, and (i) in connection with any Permitted Acquisition or Sale based on historical
results accounted for in accordance with GAAP and (ii) to the extent applicable in connection with
any Permitted Acquisition, based on reasonable assumptions that are specified in detail in the
relevant Compliance Certificate, Financial Statement or other document provided to the
Administrative Agent or any Lender in connection herewith in accordance with Regulation S-X (except
for any Pro Forma Cost Savings which need not be in accordance with Regulation S-X).







32









 








          “Pro Forma Cost Savings” means, with respect to any period and in connection with any
Permitted Acquisition, operating expense reductions that are reasonably expected to be sustainable
over such period, will not adversely affect revenues and are not greater than the reduction
reasonably expected to be realized, regardless of whether these cost savings could then be
reflected in pro forma financial statements in accordance with Regulation S-X, all such operating
expense reductions to be reasonably determined in good faith by the chief financial or accounting
officer of the Borrower and to be reasonably satisfactory to the Administrative Agent and, to the
extent requested by the Administrative Agent, to be set forth in a certificate signed by such
officer.




          “Pro Forma Transaction” means, as the context requires, (i) any transaction
consummated as part of any Permitted Acquisition, together with each other transaction relating
thereto and consummated in connection therewith, (ii) the incurrence of any Indebtedness (other
than revolving Indebtedness, except to the extent this is incurred to refinance or repay other
outstanding Indebtedness or to finance a Permitted Acquisition, an Investment or a Restricted
Payment), (iii) the purchase of any Indedtedness in accordance with the procedures set forth in
Section 2.21 or the permanent repayment of any Indebtedness (other than revolving
Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction),
(iv) any Sale permitted under Section 8.4(e), (f), (g) or (h),
together with each other transaction relating thereto and consummated in connection therewith, and
(v) any Restricted Payment made (x) in respect of a Permitted Stock Repurchase in accordance with
Section 8.5(e) or (y) in respect of any cash dividend on any common Stock or Preferred
Stock of the Borrower made in accordance with Section 8.5(f).




          “Projections” means, collectively, the Initial Projections and any document delivered
pursuant to Section 6.1(e).




          “Property Loss Event” means, with respect to any property, any loss of or damage to
such property or any taking of such property or condemnation thereof.




          “Proposed Acquisition” means (a) any proposed acquisition that is consensual and
approved by the board of directors (or other applicable governing body) of the applicable Proposed
Acquisition Target, of (x) (i) in the case of a Proposed Acquisition Target that is to become a
Loan Party, at least a majority of the Stock of such Proposed Acquisition Target or (ii) in the
case of a Proposed Acquisition Target that is not to become a Loan Party, at least 75% of the Stock
of such Proposed Acquisition Target, in each case by the Borrower or any Subsidiary of the Borrower
or (y) all or substantially all of the assets of any Proposed Acquisition Target by any Subsidiary
of the Borrower, (b) any proposed merger of any Proposed Acquisition Target with or into the
Borrower or any Subsidiary of the Borrower (and, in the case of a merger with the Borrower, with
the Borrower being the surviving corporation), (c) any proposed acquisition of all or any portion
of the remaining Stock and/or Stock Equivalents of any Subsidiary that is not a Wholly Owned
Subsidiary, provided that in the case where such Subsidiary is not, and will not become, a Loan
Party after such acquisition, the Borrower and its Subsidiaries must own at least 75% of the Stock
of such Subsidiary after such acquisition, or (d) any proposed acquisition of all or any portion of
the remaining Stock and/or Stock Equivalents in any Proposed Acquisition Target that is not already
owned by the Borrower or any Subsidiary of the Borrower, provided that (i) in the case of a
Proposed Acquisition Target that is to become a Loan Party after such acquisition, the Borrower and
its Subsidiaries must own at least a majority of the Stock of such Proposed Acquisition Target
after such acquisition or (ii) in the case of a Proposed Acquisition Target that is not to become a
Loan Party after such acquisition, the Borrower and its Wholly






33









 







Owned Subsidiaries must own at least 75% of the Stock of such Proposed Acquisition Target
after such acquisition.




          “Proposed Acquisition Target” means any Person (including any Subsidiary thereof) or
any brand, line of business, division, branch, operating division or other unit operation of any
Person.




          “Pro Rata Outstandings”, of any Lender at any time, means (a) in the case of the Term
Loan Facility, the outstanding principal amount of the Term Loans owing to such Lender and (b) in
the case of the Revolving Credit Facility, the sum of (i) the outstanding principal amount of
Revolving Loans owing to such Lender and (ii) the amount of the participation of such Lender in the
L/C Obligations outstanding with respect to all Letters of Credit.




          “Pro Rata Share” means, with respect to any Lender and any Facility or Facilities at
any time, the percentage obtained by dividing (a) the sum of the Commitments (or, if such
Commitments in any such Facility are terminated, the Pro Rata Outstandings therein) of such Lender
then in effect under such Facilities by (b) the sum of the Commitments (or, if such Commitments in
any such Facility are terminated, the Pro Rata Outstandings therein) of all Lenders then in effect
under such Facilities; provided, however, that, if there are no Commitments and no
Pro Rata Outstandings in any of such Facilities, such Lender’s Pro Rata Share in such Facilities
shall be determined based on the Pro Rata Share in such Facilities most recently in effect, after
giving effect to any subsequent assignment and any subsequent non-pro rata payments of any Lender
pursuant to Section 2.18.




          “Qualifying Bid” has the meaning specified in Schedule 2.21.




          “Refinancing” means the refinancing transactions specified in Section
3.1(c)(i).




          “Register” has the meaning specified in Section 2.14(b).




          “Regulation S-X” means Regulation S-X of the Securities Act of 1933.




          “Reinvestment Prepayment Amount” means, with respect to any Net Cash Proceeds on the
Reinvestment Prepayment Date therefor, the amount of such Net Cash Proceeds less any amount
paid or required to be paid by any Group Member to make Permitted Reinvestments with such Net Cash
Proceeds pursuant to a Contractual Obligation entered into prior to such Reinvestment Prepayment
Date with any Person that is not an Affiliate of the Borrower.




          “Reinvestment Prepayment Date” means, with respect to any portion of any Net Cash
Proceeds of any Sale or Property Loss Event, the earliest of (a) the 180th day after the
completion of the portion of such Sale or Property Loss Event corresponding to such Net Cash
Proceeds, (b) the date that is 5 Business Days after the date on which the Borrower shall have
notified the Administrative Agent of the Borrower’s determination not to make Permitted
Reinvestments with such Net Cash Proceeds, and (c) 5 Business Days after the delivery of a notice
by the Administrative Agent or the Required Lenders to the Borrower during the continuance of any
Event of Default.




          “Related Person” means, with respect to any Person, each Affiliate of such Person and
each director, officer, employee, stockholder, partner or other equity holder, financing source or
agent, trustee, representative, attorney, accountant and each insurance, environmental, legal,






34









 







financial and other advisor (including those retained in connection with the satisfaction or
attempted satisfaction of any condition set forth in Article III) and other consultants and
agents of or to such Person or any of its Affiliates, together with, if such Person is the
Administrative Agent, each other Person or individual designated, nominated or otherwise mandated
by or helping the Administrative Agent pursuant to and in accordance with Section 10.4 or
any comparable provision of any Loan Document.




          “Release” means any release, threatened release, spill, emission, leaking, pumping,
pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Material into or through the environment.




          “Remedial Action” means all actions required to (a) clean up, remove, treat or in any
other way address any Hazardous Material in the indoor or outdoor environment, (b) prevent or
minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial
studies and investigations and post-remedial monitoring and care with respect to any Hazardous
Material.




          “Reply Amount” has the meaning specified in Schedule 2.21.




          “Reply Price” has the meaning specified in Schedule 2.21.




          “Repricing Event” means any prepayment or repayment of B Term Loans with the proceeds
of, or any conversion of B Term Loans into, any new or replacement tranche of term loans (whether
under this Agreement or otherwise) bearing interest with an Effective Yield less than the Effective
Yield applicable to the B Term Loans (as such comparative yields are determined by the
Administrative Agent). Any such determination by the Administrative Agent as contemplated by the
preceding sentence shall be conclusive and binding on the Borrower and all Lenders holding B Term
Loans, absent manifest error.




          “Required Lenders” means, at any time, Non-Defaulting Lenders having at such time in
excess of 50% of the sum of (i) the aggregate Revolving Credit Commitments (or, if such Commitments
are terminated, the sum of the amounts of the participations in Swing Loans, the principal amount
of unparticipated portions of the Swing Loans and the Pro Rata Outstandings in the Revolving Credit
Facility) and (ii) Term Loan Commitments (or, if such Commitments are terminated, the Pro Rata
Outstandings in the Term Loan Facility) then in effect, ignoring, in such calculation, any
Commitments (or, if such Commitments are terminated, the Pro Rata Outstandings in any Facility)
held by any Defaulting Lender or any Non-Funding Lender.




          “Required Revolving Credit Lenders” means, at any time, Non-Defaulting Lenders having
at such time in excess of 50% of the aggregate Revolving Credit Commitments (or, if such
Commitments are terminated, the sum of the amounts of the participations in Swing Loans, the
principal amount of the unparticipated portions of the Swing Loans and the Pro Rata Outstandings in
the Revolving Credit Facility) then in effect, ignoring, in such calculation, any Revolving Credit
Commitments (or, if such Revolving Credit Commitments are terminated, the sum of the amounts of the
participations in Swing Loans, the principal amount of the unparticipated portions of the Swing
Loans and the Pro Rata Outstandings in the Revolving Credit Facility) held by any Defaulting Lender
or any Non-Funding Lender.







35









 








          “Required Term Loan Lenders” means, at any time, Non-Defaulting Lenders having at such
time in excess of 50% of the aggregate Term Loan Commitments (or, if such Commitments are
terminated, the Pro Rata Outstandings in the Term Loan Facility) then in effect, ignoring, in such
calculation, any Term Loan Commitments (or, if such Term Loan Commitments are terminated, the Pro
Rata Outstandings in the Term Loan Facility) held by any Defaulting Lender or Non-Funding Lender.




          “Requirements of Law” means, with respect to any Person, collectively, the common law
and all federal, state, local, foreign, multinational or international laws, statutes, codes,
treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the
interpretation or administration thereof by, and other determinations, directives, requirements or
requests of, any Governmental Authority, in each case whether or not having the force of law, and
that are applicable to or binding upon such Person or any of its property or to which such Person
or any of its property is subject, including all Healthcare Laws.




          “Responsible Officer” means, with respect to any Person, any of the president, chief
executive officer, chief financial officer, treasurer, assistant treasurer, controller, managing
member or general partner of such Person but, in any event, with respect to financial matters, any
such officer that is responsible for preparing the Financial Statements delivered hereunder and,
with respect to the Corporate Chart delivered pursuant to Section 6.1(d), documents
delivered on the Closing Date and documents delivered pursuant to Section 7.10, the
secretary or assistant secretary of such Person or any other officer responsible for maintaining
the corporate and similar records of such Person. Any certificate or other document required to be
delivered hereunder by any Responsible Officer or other officer of any Group Member shall,
notwithstanding any language therein to the contrary, be deemed to be delivered on behalf of the
applicable Group Member and not in such person’s individual capacity.




          “Restricted” means, when referring to cash or Cash Equivalents of the Borrower or any
of its Subsidiaries, that such cash or Cash Equivalents (i) appear (or would be required to appear)
as “restricted” on a consolidated balance sheet of the Borrower or of any such Subsidiary (unless
such appearance is related to (x) the Loan Documents or the Liens created thereunder or (y) (A) any
secured Permitted Additional Debt Documents or the Liens created thereunder or (B) any documents
relating to any secured Permitted Refinancing of any Permitted Additional Debt, or the Liens
created thereunder), (ii) are subject to any Lien in favor of any Person other than (x) the
Administrative Agent for the benefit of the Secured Parties and (y) (A) the holders of any secured
Permitted Additional Debt (or any agent or trustee in respect thereof) or (B) the holders of any
secured Permitted Refinancing of any Permitted Additional Debt (or any agent or trustee in respect
thereof) or (iii) are not otherwise generally available for use by the Borrower or such Subsidiary.




          “Restricted Debt Payment” has the meaning specified in Section 8.6(a).




          “Restricted Payment” means (a) any dividend, return of capital, distribution or any
other similar payment or Sale of property for less than fair market value, whether direct or
indirect (including through the use of Hedging Agreements, the making, repayment, cancellation or
forgiveness of Indebtedness and similar Contractual Obligations) and whether in cash, Securities or
other property, in each case to the holders (in their capacities as such) of any Stock or Stock
Equivalent of any Group Member and on account thereof, in each case now or hereafter outstanding,
including with respect to a claim for rescission of a Sale of such Stock or Stock






36









 







Equivalent, and (b) any redemption, retirement, termination, defeasance, cancellation,
purchase or other acquisition for value, whether direct or indirect (including through the use of
Hedging Agreements, the making, repayment, cancellation or forgiveness of Indebtedness and similar
Contractual Obligations), of any Stock or Stock Equivalent of any Group Member, now or hereafter
outstanding, and any payment or other transfer setting aside funds for any such redemption,
retirement, termination, cancellation, purchase or other acquisition, whether directly or
indirectly and whether to a sinking fund, a similar fund or otherwise.




          “Return Bid” has the meaning specified in Schedule 2.21.




          “Revolver Availability” means the maximum amount of unused Revolving Credit
Commitments that would be available for borrowing of Revolving Loans if after giving effect to such
Revolving Loans, the Borrower would be in compliance with the Consolidated Secured Leverage Ratio
covenant set forth in Section 5.1 on a Pro Forma Basis as of the last day of the last
Fiscal Quarter for which Financial Statements have been delivered hereunder for the four Fiscal
Quarter period ending on such day (as if the Borrower had incurred such Revolving Loans on the
first day of such period).




          “Revolving Credit Commitment” means, with respect to each Revolving Credit Lender, the
commitment of such Lender to make Revolving Loans and acquire interests in other Revolving Credit
Outstandings, which commitment is in the amount set forth opposite such Lender’s name on
Schedule I under the caption “Revolving Credit Commitment”, as amended to reflect
Assignments and as such amount may be reduced pursuant to this Agreement. The aggregate amount of
the Revolving Credit Commitments on the Closing Date equals $250,000,000.




          “Revolving Credit Facility” means the Revolving Credit Commitments and the provisions
herein related to the Revolving Loans, Swing Loans and Letters of Credit.




          “Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment,
holds a Revolving Loan or participates in any Swing Loan or Letter of Credit.




          “Revolving Credit Obligations” means (i) all Revolving Loans, Swing Loans, L/C
Obligations and the Revolving Credit Commitments and (ii) all related Obligations relating to the
Indebtedness and Commitments described in preceding clause (i).




          “Revolving Credit Outstandings” means, at any time, the sum of, in each case to the
extent outstanding at such time, (a) the aggregate principal amount of the Revolving Loans and
Swing Loans and (b) the L/C Obligations for all Letters of Credit.




          “Revolving Credit Percentage” of any Revolving Credit Lender at any time means a
fraction (expressed as a percentage) the numerator of which is the Revolving Credit Commitment of
such Revolving Credit Lender at such time and the denominator of which is the Total Revolving
Credit Commitment at such time; provided that (x) if the Revolving Credit Percentage of any
Revolving Credit Lender is to be determined after the Total Revolving Credit Commitment has been
terminated, then the Revolving Credit Percentages of such Revolving Credit Lender shall be
determined immediately prior (and without giving effect) to such termination (but giving effect to
assignments made thereafter in accordance with the terms hereof) and (y) in the case of Section
2.20 when a Defaulting Lender shall exist, “Revolving Credit Percentage” means the






37









 







percentage of the Total Revolving Credit Commitments (disregarding any Defaulting Lender’s
Revolving Credit Commitment) represented by such Lender’s Revolving Credit Commitment.




          “Revolving Credit Termination Date” means the earliest of (a) the Scheduled Revolving
Credit Termination Date, (b) the date of termination of the Revolving Credit Commitments pursuant
to Section 2.5 or 9.2 and (c) the date on which the Obligations become due and
payable pursuant to Section 9.2.




          “Revolving Loan” has the meaning specified in Section 2.1.




          “S&P” means Standard & Poor’s Rating Services.




          “Sale and Leaseback Transaction” means, with respect to any Person (the
“obligor”), any Contractual Obligation or other arrangement with any other Person (the
“counterparty”) consisting of a lease by such obligor of any property that, directly or
indirectly, has been or is to be Sold by the obligor to such counterparty or to any other Person to
whom funds have been advanced by such counterparty based on a Lien on, or an assignment of, such
property or any obligations of such obligor under such lease.




          “Scheduled A Term Loan Maturity Date” means the fifth (5th) anniversary of
the Closing Date; provided, however, that (i) in the event that any
Existing Senior Notes remain outstanding on the date that is six months prior to February 1, 2016,
then the Scheduled A Term Loan Maturity Date instead shall be such date, (ii) in the event that any
Existing 2016 Subordinated Notes remain outstanding on the date that is six months prior to May 15,
2016, then the Scheduled A Term Loan Maturity Date instead shall be such date, or (iii) in the
event that any Existing 2016 Subordinated Convertible Notes remain outstanding on the date that is
six months prior to May 15, 2016, then the Scheduled A Term Loan Maturity Date instead shall be
such date (unless, in the case of clauses (i), (ii) and (iii) above, either (x) the outstanding
obligations under the relevant Existing Notes (including all interest that will accrue thereon
until such time as the respective Existing Notes have been redeemed or repaid in full in accordance
with the terms of the applicable Existing Notes Indenture and such Existing Notes Indenture has
been terminated) have been defeased or satisfied and discharged in accordance with the terms of the
applicable Existing Notes Documents on such date or (y) cash in an aggregate amount equal to all
such outstanding obligations has been deposited as security for the benefit of the Secured Parties
in a manner, on terms and conditions, and pursuant to documentation, in each case satisfactory to
the Administrative Agent (which, in any event, shall require that such cash be deposited in a Cash
Collateral Account (subject to the Administrative Agent’s security interest under the Guaranty and
Security Agreement), which cash can only be accessed by the Borrower for the purpose of repaying
the relevant Existing Notes upon any remaining scheduled amortization (including any remaining
scheduled interest payments) and in full at maturity).




          “Scheduled B Term Loan Maturity Date” means the sixth (6th) anniversary of the Closing
Date, provided, however, that (i) in the event that any Existing Senior
Notes remain outstanding on the date that is six months prior to February 1, 2016, then the
Scheduled B Term Loan Maturity Date instead shall be such date, (ii) in the event that any Existing
2016 Subordinated Notes remain outstanding on the date that is six months prior to May 15, 2016,
then the Scheduled B Term Loan Maturity Date instead shall be such date, or (iii) in the event
that any Existing 2016 Subordinated Convertible Notes remain outstanding on the date that is six
months prior to May 15, 2016, then the Scheduled B Term Loan Maturity Date instead shall be such
date (unless, in the case of each of clauses (i), (ii) and (iii) above, either (x) the outstanding
obligations






38









 







under the relevant Existing Notes (including all interest that will accrue thereon until such
time as the respective Existing Notes have been redeemed or repaid in full in accordance with the
terms of the applicable Existing Notes Indenture and such Existing Notes Indenture has been
terminated) have been defeased or satisfied and discharged in accordance with the terms of the
applicable Existing Notes Documents on such date or (y) cash in an aggregate amount equal to all
such outstanding obligations has been deposited as security for the benefit of the Secured Parties
in a manner, on terms and conditions, and pursuant to documentation, in each case satisfactory to
the Administrative Agent (which, in any event, shall require that such cash be deposited in a Cash
Collateral Account (subject to the Administrative Agent’s security interest under the Guaranty and
Security Agreement), which cash can only be accessed by the Borrower for the purpose of repaying
the relevant Existing Notes upon any remaining scheduled amortization (including any remaining
scheduled interest payments) and in full at maturity).




          “Scheduled A Term Loan Repayment” has the meaning specified in Section 2.6(b).




          “Scheduled A Term Loan Repayment Date” has the meaning specified in Section
2.6(b).




          “Scheduled B Term Loan Repayment” has the meaning specified in Section 2.6(c).




          “Scheduled B Term Loan Repayment Date” has the meaning specified in Section
2.6(c).




          “Scheduled Delayed-Draw Term Loan Repayment” has the meaning specified in Section
2.6(d).




          “Scheduled Delayed-Draw Term Loan Repayment Date” has the meaning specified in
Section 2.6(d).




          “Scheduled Delayed-Draw Term Loan Maturity Date” means the fifth (5th)
anniversary of the Closing Date; provided, however, that (i) in the event
that any Existing Senior Notes remain outstanding on the date that is six months prior to February
1, 2016, then the Scheduled A Term Loan Maturity Date instead shall be such date, (ii) in the event
that any Existing 2016 Subordinated Notes remain outstanding on the date that is six months prior
to May 15, 2016, then the Scheduled Delayed-Draw Term Loan Maturity Date instead shall be such
date, or (iii) in the event that any Existing 2016 Subordinated Convertible Notes remain
outstanding on the date that is six months prior to May 15, 2016, then the Scheduled Delayed-Draw
Term Loan Maturity Date instead shall be such date (unless, in the case of clauses (i), (ii) and
(iii) above, either (x) the outstanding obligations under the relevant Existing Notes (including
all interest that will accrue thereon until such time as the respective Existing Notes have been
redeemed or repaid in full in accordance with the terms of the applicable Existing Notes Indenture
and such Existing Notes Indenture has been terminated) have been defeased or satisfied and
discharged in accordance with the terms of the applicable Existing Notes Documents on such date or
(y) cash in an aggregate amount equal to all such outstanding obligations has been deposited as
security for the benefit of the Secured Parties in a manner, on terms and conditions, and pursuant
to documentation, in each case satisfactory to the Administrative Agent (which, in any event, shall
require that such cash be deposited in a Cash Collateral Account (subject to the Administrative
Agent’s security interest under the Guaranty and Security Agreement), which cash can only be
accessed by the Borrower for the purpose of repaying the relevant Existing Notes upon any remaining
scheduled amortization (including any remaining scheduled interest payments) and in full at
maturity).







39









 








          “Scheduled Revolving Credit Termination Date” means the fifth (5th)
anniversary of the Closing Date; provided, however, that (i) in the event
that any Existing Senior Notes remain outstanding on the date that is six months prior to February
1, 2016, then the Scheduled Revolving Credit Termination Date instead shall be such date, (ii) in
the event that any Existing 2016 Subordinated Notes remain outstanding on the date that is six
months prior to May 15, 2016, then the Scheduled Revolving Credit Termination Date instead shall be
such date, or (iii) in the event that any Existing 2016 Subordinated Convertible Notes remain
outstanding on the date that is six months prior to May 15, 2016, then the Scheduled Revolving
Credit Termination Date instead shall be such date (unless, in the case of each of clauses (i),
(ii) and (iii) above, either (x) the outstanding obligations under the relevant Existing Notes
(including all interest that will accrue thereon until such time as the respective Existing Notes
have been redeemed or repaid in full in accordance with the terms of the applicable Existing Notes
Indenture and such Existing Notes Indenture has been terminated) have been defeased or satisfied
and discharged in accordance with the terms of the applicable Existing Notes Documents on such date
or (y) cash in an aggregate amount equal to all such outstanding obligations has been deposited as
security for the benefit of the Secured Parties in a manner, on terms and conditions, and pursuant
to documentation, in each case satisfactory to the Administrative Agent (which, in any event, shall
require that such cash be deposited in a Cash Collateral Account (subject to the Administrative
Agent’s security interest under the Guaranty and Security Agreement), which cash can only be
accessed by the Borrower for the purpose of repaying the relevant Existing Notes upon any remaining
scheduled amortization (including any remaining scheduled interest payments) and in full at
maturity).




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




          “Secured Hedging Agreement” means any Hedging Agreement that (a) has been entered into
with a Secured Hedging Counterparty, (b) in the case of a Hedging Agreement not entered into with
or provided or arranged by the Administrative Agent or an Affiliate of the Administrative Agent, is
expressly identified as being a “Secured Hedging Agreement” hereunder in a joint notice from such
Loan Party and such Person delivered to the Administrative Agent reasonably promptly after the
execution of such Hedging Agreement and (c) meets the requirements of Section 8.1(f).




          “Secured Hedging Counterparty” means (a) a Person who has entered into a Hedging
Agreement which meets the requirements of Section 8.1(f) with a Loan Party if such Hedging
Agreement was provided or arranged by the Administrative Agent or an Affiliate of the
Administrative Agent, and any assignee of such Person or (b) a Lender or an Affiliate of a Lender
who has entered into a Hedging Agreement which meets the requirements of Section 8.1(f)
with a Loan Party (or a Person who was a Lender or an Affiliate of a Lender at the time of
execution and delivery of such Hedging Agreement).




          “Secured Parties” means the Lenders, the L/C Issuers, the Administrative Agent, any
Secured Hedging Counterparty, any Secured Treasury Services Creditor, each other Indemnitee and any
other holder of any Obligation of any Loan Party.




          “Secured Treasury Services Agreement” means any Treasury Services Agreement that (a)
has been entered into with a Secured Treasury Services Creditor, (b) has been approved in writing
by the Borrower as being a “Secured Treasury Services Agreement” hereunder and (c) is expressly
identified as being a “Secured Treasury Services Agreement” hereunder in a joint written notice
from the Borrower and such Secured Treasury Services Creditor delivered to the






40









 







Administrative Agent reasonably promptly after the execution of such Treasury Services
Agreement (it being understood (i) that any such notice may specify the aggregate amount of
obligations under the respective Secured Treasury Services Agreement that is entitled to be secured
by the Collateral under the Loan Documents and treated as Obligations hereunder and thereunder and
(ii) to the extent that any such notice does not specify such a limit, then, unless otherwise
approved in writing by the Borrower, no more than $10,000,000 in the aggregate of all obligations
under all Secured Treasury Services Agreements shall be entitled to be secured on a ratable basis
by the Collateral under the Loan Documents and treated as Obligations hereunder and thereunder).




          “Secured Treasury Services Creditor” means a Lender or an Affiliate of a Lender who
has entered into a Treasury Services Agreement with a Loan Party.




          “Security” means all Stock, Stock Equivalents, voting trust certificates, bonds,
debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or
subordinated, all certificates of interest, share or participation in, all certificates for the
acquisition of, and all warrants, options and other rights to acquire, any Security.




          “Sell” means, with respect to any property, to sell, convey, transfer, assign,
license, lease or otherwise dispose of, any interest therein or to permit any Person to acquire any
such interest, including, in each case, through a Sale and Leaseback Transaction or through a sale,
factoring at maturity, collection of or other disposal, with or without recourse, of any notes or
accounts receivable. Conjugated forms thereof and the noun “Sale” have correlative
meanings.




          “Solvent” means, with respect to any Person or any group of Persons taken together on
a consolidated basis as of any date of determination, that, as of such date, (a) the value of the
assets of such Person or group (both at fair value and present fair saleable value) is greater than
the total amount of liabilities (including contingent and unliquidated liabilities) of such Person
or group, (b) such Person or group is able to pay all liabilities of such Person or group as such
liabilities mature and (c) such Person or group does not have unreasonably small capital. In
computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall
be computed at the amount that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability.




          “SPV” means any special purpose funding vehicle identified as such in a writing by any
Lender to the Administrative Agent.




          “Stock” means all shares of capital stock (whether denominated as common stock or
preferred stock), equity interests, beneficial, partnership or membership interests, joint venture
interests, participations or other ownership or profit interests in or equivalents (regardless of
how designated) of or in a Person (other than an individual), whether voting or non-voting.




          “Stock Equivalents” means all securities convertible into or exchangeable for Stock or
any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or
otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible,
exchangeable or exercisable.




          “Subordinated Debt” means any Indebtedness that is subordinated to the payment in full
of the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent
(including the Existing Subordinated Notes and any Permitted Additional Debt, Permitted






41









 







Acquisition Debt or other Junior Indebtedness that satisfies the criteria for subordination
set forth in this definition).




          “Subsidiary” means, with respect to any Person, any corporation, partnership, joint
venture, limited liability company, association or other entity, the management of which is,
directly or indirectly, controlled by, or of which an aggregate of more than 50% of the outstanding
Voting Stock is, at the time, owned or controlled directly or indirectly by, such Person or one or
more Subsidiaries of such Person. Based on the capital structure and ownership of the P&G JV
Companies as of the Closing Date, the P&G JV Companies are not Subsidiaries of any Group Member.




          “Substitute Lender” has the meaning specified in Section 2.18(a).




          “SWDA” means the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.).




          “Swingline Commitment” means $25,000,000.




          “Swingline Lender” means, each in its capacity as Swingline Lender hereunder, GE
Capital or, upon the resignation of GE Capital as Administrative Agent hereunder, any Lender (or
Affiliate or Approved Fund of any Lender) that agrees, with the approval of the Administrative
Agent (or, if there is no such successor Administrative Agent, the Required Lenders) and the
Borrower, to act as the Swingline Lender hereunder.




          “Swingline Request” has the meaning specified in Section 2.3(b).




          “Swing Loan” has the meaning specified in Section 2.3(a).




          “Swing Loan Exposure” means, at any time, the aggregate principal amount of all Swing
Loans outstanding at such time. The Swing Loan Exposure of any Revolving Credit Lender at any time
shall be its Revolving Credit Percentage of the aggregate Swing Loan Exposure at such time.




          “Swissco” means Alere Switzerland GmbH (formerly, Inverness Medical Switzerland GmbH),
an entity organized under the laws of Switzerland.




          “Swiss Pledge Agreement” has the meaning specified in Section 3.1(a)(iii).




          “Tax Affiliate” means (a) the Borrower and its Subsidiaries and (b) any Affiliate of
the Borrower with which the Borrower files or is eligible to file consolidated, combined or unitary
tax returns.




          “Tax Benefit” has the meaning specified in Section 2.17(e).




          “Tax Return” has the meaning specified in Section 4.8.




          “Taxes” has the meaning specified in Section 2.17(a).




          “Term Loan” means each Initial Term Loan, each Delayed-Draw Term Loan and each
Incremental Term Loan.







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          “Term Loan Commitment” means, with respect to each Term Loan Lender, the A Term Loan
Commitment, the B Term Loan Commitment, the Delayed-Draw Term Loan Commitment and any Incremental
Term Loan Commitment of such Lender, as amended to reflect Assignments and as such amount may be
reduced pursuant to this Agreement.




          “Term Loan Facility” means the Term Loan Commitments and the provisions herein related
to the Term Loans.




          “Term Loan Lender” means each Lender that has a Term Loan Commitment or that holds a
Term Loan.




          “Term Loan Percentage” of a Tranche of Term Loans means, at any time, a fraction
(expressed as a percentage), the numerator of which is equal to the aggregate outstanding principal
amount of all Term Loans of such Tranche at such time and the denominator of which is equal to the
aggregate outstanding principal amount of all Term Loans of all Tranches at such time.




          “Title IV Plan” means a Pension Plan subject to Title IV of ERISA, other than a
Multiemployer Plan, to which any ERISA Affiliate maintains, sponsors or contributes to or has
maintained, sponsored or contributed to within the last 6 years or otherwise has any obligation or
liability, contingent or otherwise.




          “Total Assets” means the total assets of the Borrower and its Subsidiaries on a
consolidated basis, as shown on the most recent balance sheet of the Borrower delivered pursuant to
Section 6.1(a) or (b).




          “Total A Term Loan Commitment” means, at any time, the sum of the A Term Loan
Commitments of each of the Lenders at such time.




          “Total B Term Loan Commitment” means, at any time, the sum of the B Term Loan
Commitments of each of the Lenders at such time.




          “Total Commitment” means, at any time, the sum of the Commitments of each of the
Lenders at such time.




          “Total Delayed-Draw Term Loan Commitment” means, at any time, the sum of the
Delayed-Draw Term Loan Commitments of each of the Delayed-Draw Term Loan Lenders at such time.




          “Total Revolving Credit Commitments” means, at any time, the sum of the Revolving
Credit Commitments of each of the Lenders at such time.




          “Total Unutilized Delayed-Draw Term Loan Commitment” means, at any time, an amount
equal to the remainder of (i) the Total Delayed-Draw Term Loan Commitment in effect at such time
less (ii) the aggregate principal amount of Delayed-Draw Term Loans previously incurred, if
any, pursuant to Section 2.1(b)(iii).




          “Trademarks” means all right, title and interest (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service marks, logos and






43









 







other source or business identifiers and, in each case, all goodwill associated therewith, all
registrations thereof and all applications therefor.




          “Trade Control Laws” means all applicable export control and economic sanctions laws
and regulations, including, but not limited to, the Export Administration Regulations, the
International Traffic in Arms Regulations, and the economic sanctions regulations administered by
the Office of Foreign Assets Control of the U.S. Department of the Treasury.




          “Trade Secrets” means all right, title and interest (and all related IP Ancillary
Rights) arising under any Requirement of Law in or relating to trade secrets.




          “Tranche” means the respective facility and commitments utilized in making Loans
hereunder, with there being separate five Tranches as of the Closing Date, i.e., A Term Loans, B
Term Loans, Delayed-Draw Term Loans, Revolving Loans and Swing Loans; provided that for the
purposes of Sections 2.6(a), 2.18, 11.1, 11.2(b), Revolving Loans
and Swing Loans shall be deemed to constitute part of a single “Tranche”. In addition,
notwithstanding the foregoing, any Incremental Term Loans incurred after the Closing Date shall,
unless added to the Initial Term Loans, be made pursuant to one or more additional Tranches of Term
Loans which shall be designated in accordance with the relevant requirements specified in
Section 2.19.




          “Transactions” means, collectively, (i) the consummation of the Refinancing, (ii) the
entering into of the Loan Documents, the incurrence of Loans on the Closing Date and the use of
proceeds thereof and (iii) the payment of all fees and expenses in connection with the foregoing.




          “Treasury Services” means treasury, depositary, automated clearinghouse transfers of
funds, credit cards, purchasing cards and other cash management services (including, without
limitation, overnight overdraft services, lockbox services, wire transfer services and electronic
funds transfer services).




          “Treasury Services Agreements” means any written agreements and/or arrangements to
provide Treasury Services.




          “Type” means the type or Loan determined with regard to the interest option applicable
thereto, i.e., whether a Base Rate Loan or a Eurodollar Rate Loan.




          “UCC” means the Uniform Commercial Code of any applicable jurisdiction and, if the
applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as
in effect in the State of New York.




          “Unfunded Pension Liability” means, at any time, the aggregate amount, if any, of the
sum of (a) the amount by which the present value of all accrued benefits under each Title IV Plan
exceeds the fair market value of all assets of such Title IV Plan allocable to such benefits in
accordance with Title IV of ERISA, all determined as of the most recent valuation date for each
such Title IV Plan using the actuarial assumptions for funding purposes in effect under such Title
IV Plan, and (b) for a period of 5 years following a transaction which might reasonably be expected
to be covered by Section 4069 of ERISA, the liabilities (whether or not accrued, but only to the
extent such liabilities could reasonably be expected to have a Material Adverse Effect) that could
be avoided by any Group Member or any ERISA Affiliate as a result of such transaction.







44









 








          “United States” means the United States of America.




          “Unrestricted” means, when referring to cash or Cash Equivalents of any Loan Party,
that such cash or Cash Equivalents are not Restricted.




          “Unused Revolver Commitment Fee” has the meaning specified in Section 2.11.




          “U.S. Lender Party” means each of the Administrative Agent, each Lender, each L/C
Issuer, each SPV and each participant, in each case that is a Domestic Person.




          “Voting Stock” means Stock of any Person having ordinary power to vote in the election
of members of the board of directors, managers, trustees or other controlling Persons of such
Person (irrespective of whether, at the time, Stock of any other class or classes of such entity
shall have or might have voting power by reason of the occurrence of any contingency).




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: (i) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.




          “Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person, all of
the Stock of which (other than nominal holdings and director’s qualifying shares) is owned by such
Person, either directly or through one or more Wholly Owned Subsidiaries of such Person.




          “Working Capital” means, for any Person at any date, its Consolidated Current Assets
at such date minus its Consolidated Current Liabilities at such date.




                Section 1.2 UCC Terms. The following terms have the meanings given to them in the applicable UCC: “commodity account”,
“commodity contract”, “commodity intermediary”, “deposit account”, “entitlement holder”,
“entitlement order”, “equipment”, “financial asset”, “general intangible”, “goods”, “instruments”,
“inventory”, “securities account”, “securities intermediary” and “security entitlement”.




                Section 1.3 Accounting Terms and Principles. (a) GAAP. All accounting determinations required
to be made pursuant hereto shall,
unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the
accounting principles used in the preparation of any Financial Statement hereafter adopted by the
Borrower shall be given effect if such change would affect a calculation that measures compliance
with any provision of Article V or VIII unless the Borrower, the Administrative
Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and,
unless such provisions are modified, all Financial Statements, Compliance Certificates and similar
documents provided hereunder shall be provided together with a reconciliation between the
calculations and amounts set forth therein before and after giving effect to such change in GAAP.
For the avoidance of doubt, all operating lease expense with
respect to leases of the Borrower and its Subsidiaries that would constitute operating leases under
GAAP as in effect on the Closing Date shall not be included in the calculations of Capital Leases
and Capital Lease Obligations hereunder unless the Borrower, the Administrative Agent and the
Required Lenders otherwise agree to modify the provisions hereof





45









 







in accordance with the immediately
preceding sentence. In addition, to the extent that all obligations in respect of any issue of
Existing Notes are (x) defeased or satisfied and discharged or (y) cash is deposited as security
for the benefit of the Secured Parties in an amount sufficient to repay in full the respective
Existing Notes at maturity, as provided for in the definition of Scheduled A Term Loan Maturity
Date, Scheduled B Term Loan Maturity Date, Scheduled Delayed-Draw Term Loan Maturity Date or
Scheduled Revolving Credit Termination Date respectively, then such issue of Existing Notes will
not be considered outstanding for purposes of this Agreement (including any of the covenants or
other provisions in Articles V or VIII).




               (b) Pro Forma. All components of financial calculations made to determine compliance
with Article V shall be adjusted on a Pro Forma Basis to include or exclude, as the case
may be, without duplication, such components of such calculations attributable to any Pro Forma
Transaction consummated after the first day of the applicable period of determination and prior to
the end of such period, as determined in good faith by the Borrower based on assumptions expressed
therein and that were reasonable based on the information available to the Borrower at the time of
preparation of the Compliance Certificate setting forth such calculations.




                Section 1.4 Payments. The Administrative Agent may set up standards and procedures to determine or redetermine the
equivalent in Dollars of any amount expressed in any currency other than Dollars and otherwise may,
but shall not be obligated to, rely on any determination made by any Loan Party or any L/C Issuer.
Any such determination or redetermination by the Administrative Agent shall be conclusive and
binding for all purposes, absent manifest error. No determination or redetermination by any
Secured Party or Loan Party and no other currency conversion shall change or release any obligation
of any Loan Party or of any Secured Party (other than the Administrative Agent and its Related
Persons) under any Loan Document, each of which agrees to pay separately for any shortfall
remaining after any conversion and payment of the amount as converted. The Administrative Agent
may round up or down, and may set up appropriate mechanisms to round up or down, any amount
hereunder to nearest higher or lower amounts and may determine reasonable de minimis payment
thresholds.




                Section 1.5 Interpretation. (a) Certain Terms. Except as set forth in any Loan Document, all accounting terms not
specifically defined herein shall be construed in accordance with GAAP (except for the term
“property”, which shall be interpreted as broadly as possible, including, in any case,
cash, Securities, other assets, rights under Contractual Obligations and Permits and any right or
interest in any property). The terms “herein”, “hereof” and similar terms refer to
this Agreement as a whole. In the computation of periods of time from a specified date to a later
specified date in any Loan Document, the terms “from” means “from and including” and the
words “to” and “until” each mean “to but excluding” and the word “through”
means “to and including.” In any other case, the term “including” when used in any Loan
Document means “including without limitation.” The term “documents” means all writings,
however evidenced and whether in physical or electronic form, including all documents, instruments,
agreements, notices, demands, certificates, forms, financial statements, opinions and reports. The
term “incur” means incur,
create, make, issue, assume or otherwise become directly or indirectly liable in respect of or
responsible for, in each case whether directly or indirectly, and the terms “incurrence” and
“incurred” and similar derivatives shall have correlative meanings.




                (b) Certain References. Unless otherwise expressly indicated, references (i) in this
Agreement to an Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or
Schedule to, or Article, Section or clause in, this Agreement and (ii) in any Loan Document, to (A)
any agreement shall include, without limitation, all exhibits, schedules,



46









 






appendixes and annexes to
such agreement and, unless any prior consent of any Secured Party or the Loan Parties expressly
required hereunder is not obtained, any modification, amendment, restatement or amendment and
restatement to any term of such agreement, (B) any statute shall be to such statute as modified
from time to time and to any successor legislation thereto, in each case as in effect at the time
any such reference is operative and (C) any time of day shall be a reference to New York time.
Titles of articles, sections, clauses, exhibits, schedules and annexes contained in any Loan
Document are without substantive meaning or content of any kind whatsoever and are not a part of
the agreement between the parties hereto. Unless otherwise expressly indicated, the meaning of any
term defined (including by reference) in any Loan Document shall be equally applicable to both the
singular and plural forms of such term.




ARTICLE II

THE FACILITIES




                Section 2.1 The Commitments. (a) Revolving Credit Commitments. On the terms and subject to the conditions contained
in this Agreement, each Revolving Credit Lender severally, but not jointly, agrees to make loans in
Dollars (each a “Revolving Loan”) to the Borrower from time to time on any Business Day
during the period from the date hereof until the Revolving Credit Termination Date in an aggregate
principal amount at any time outstanding for all such loans by such Lender not to exceed such
Lender’s Revolving Credit Commitment; provided, however, that at no time shall any
Revolving Credit Lender be obligated to make a Revolving Loan in excess of such Lender’s Pro Rata
Share of the amount by which the then effective Revolving Credit Commitments exceeds the aggregate
Revolving Credit Outstandings at such time. Within the limits set forth in the first sentence of
this clause (a), amounts of Revolving Loans repaid may be reborrowed under this Section
2.1.




                (b) Term Loan Commitments. (i) On the terms and subject to the conditions contained
in this Agreement, each Term Loan Lender severally, but not jointly, agrees to make a loan (each an
“A Term Loan”) in Dollars to the Borrower on the Closing Date in an amount not to exceed
such Lender’s A Term Loan Commitment. Amounts of A Term Loans repaid may not be reborrowed.





               (ii) On the terms and subject to the conditions contained in this Agreement, each Term
Loan Lender severally, but not jointly, agrees to make a loan (each a “B Term
Loan”) in Dollars to the Borrower on the Closing Date in an amount not to exceed such
Lender’s B Term Loan Commitment. Amounts of B Term Loans repaid may not be reborrowed.




               (iii) On the terms and subject to the conditions contained in this Agreement, each
Delayed-Draw Term Loan Lender severally, but not jointly, agrees to
make a loan or loans (each a “Delayed-Draw Term Loan”) in Dollars to the
Borrower, which Delayed-Draw Term Loans (A) may be incurred pursuant to up to four separate
Borrowings occurring after the Closing Date and prior to the Delayed-Draw Term Loan
Commitment Termination Date and (B) shall be made by each such Delayed-Draw Term Loan
Lender in an amount not to exceed the Delayed-Draw Term Loan Commitment, if any, of such
Delayed-Draw Term Loan Lender as in effect immediately prior to making any such
Delayed-Draw Term Loans. Amounts of Delayed-Draw Term Loans repaid may not be reborrowed.



47









 





                Section 2.2 Borrowing Procedures. (a) Notice From the Borrower. Each Borrowing shall be made on notice given by the
Borrower to the Administrative Agent not later than 11:00 a.m. on (i) the first Business Day, in
the case of a Borrowing of Base Rate Loans and (ii) the third Business Day, in the case of a
Borrowing of Eurodollar Rate Loans, prior to the date of the proposed Borrowing. Each such notice
may be made in a writing substantially in the form of Exhibit C (a “Notice of
Borrowing”) duly completed or by telephone if confirmed promptly, but in any event within one
Business Day and prior to such Borrowing, with such a Notice of Borrowing. Loans shall be made as
Base Rate Loans unless, outside of a suspension period pursuant to Section 2.15, the Notice
of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. The Notice of
Borrowing shall specify whether the loans being incurred pursuant to such Borrowing shall
constitute Initial Term Loans, Delayed-Draw Term Loans or Revolving Loans. Each Borrowing shall be
in an aggregate amount that is an integral multiple of $1,000,000.




                (b) Notice to Each Lender. The Administrative Agent shall give to each Lender prompt
notice of the Administrative Agent’s receipt of a Notice of Borrowing and, if Eurodollar Rate Loans
are properly requested in such Notice of Borrowing, prompt notice of the applicable interest rate.
Each Lender shall, before 11:00 a.m. on the date of the proposed Borrowing, make available to the
Administrative Agent at its address referred to in Section 11.11, such Lender’s Pro Rata
Share of such proposed Borrowing. Upon fulfillment or due waiver (i) on the Closing Date, of the
applicable conditions set forth in Section 3.1 and (ii) on the Closing Date and any time
thereafter, of the applicable conditions set forth in Section 3.2, the Administrative Agent
shall make such funds available to the Borrower.




                (c) Non-Funding Lenders. Unless the Administrative Agent shall have received notice
from any Lender prior to the date such Lender is required to make any payment hereunder with
respect to any Loan or any participation in any Swing Loan or Letter of Credit that such Lender
will not make such payment (or any portion thereof) available to the Administrative Agent, the
Administrative Agent may assume that such Lender has made such payment available to the
Administrative Agent on the date such payment is required to be made in accordance with this
Article II and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. The Borrower agrees to repay to the
Administrative Agent on demand such amount (until repaid by such Lender) 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 the interest rate applicable to the Obligation that would
have been created when the Administrative Agent made available such amount to the Borrower had such
Lender made a corresponding payment available; provided, however, that such payment
shall not relieve such Lender of any obligation it may have to the Borrower, the Swingline Lender
or any L/C Issuer. In addition, any Lender that shall not have made available to the
Administrative Agent any portion of any payment described
above (any such Lender, a “Non-Funding Lender”) agrees to pay such amount to the
Administrative Agent on demand 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 the Federal Funds Rate for the first Business Day and thereafter (i) in the case of a
payment in respect of a Loan, at the interest rate applicable at the time to such Loan and (ii)
otherwise, at the interest rate applicable to Base Rate Loans under the Revolving Credit Facility.
Such repayment shall then constitute the funding of the corresponding Loan (including any Loan
deemed to have been made hereunder with such payment) or participation. The existence of any
Non-Funding Lender shall not relieve any other Lender of its obligations under



48









 






any Loan Document,
but no other Lender shall be responsible for the failure of any Non-Funding Lender to make any
payment required under any Loan Document.




                Section 2.3 Swing Loans. (a) Availability. On the terms and subject to the conditions contained in this
Agreement, the Swingline Lender may, in its sole discretion, make loans in Dollars (each a
“Swing Loan”) available to the Borrower under the Revolving Credit Facility from time to
time on any Business Day during the period from the date hereof until the Revolving Credit
Termination Date in an aggregate principal amount at any time outstanding not to exceed its
Swingline Commitment; provided, however, that the Swingline Lender may not make any
Swing Loan (x) to the extent that after giving effect to such Swing Loan, the aggregate Revolving
Credit Outstandings would exceed the Revolving Credit Commitments and (y) in the period commencing
on the first Business Day after it receives notice from the Administrative Agent or the Required
Revolving Credit Lenders that one or more of the conditions precedent contained in Section
3.2 are not satisfied and ending when such conditions are satisfied or duly waived. In
connection with the making of any Swing Loan, the Swingline Lender may but shall not be required to
determine that, or take notice whether, the conditions precedent set forth in Section 3.2
have been satisfied or waived. Each Swing Loan shall be a Base Rate Loan and must be repaid in
full on the earliest of (i) the funding date of any Borrowing of Revolving Loans and (ii) the
Revolving Credit Termination Date. Within the limits set forth in the first sentence of this
clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).




                (b) Borrowing Procedures. In order to request a Swing Loan, the Borrower shall give
to the Administrative Agent a notice to be received not later than 1:00 p.m. on the day of the
proposed borrowing, which may be made in a writing substantially in the form of Exhibit D
duly completed (a “Swingline Request”) or by telephone if confirmed promptly but, in any
event, prior to such borrowing, with such a Swingline Request. In addition, if any Notice of
Borrowing requests a Borrowing of Base Rate Loans, the Swing Line Lender may, notwithstanding
anything else to the contrary in Section 2.2, make a Swing Loan available to the Borrower
in an aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the
corresponding proposed Borrowing shall be reduced accordingly by the principal amount of such Swing
Loan. The Administrative Agent shall promptly notify the Swingline Lender of the details of the
requested Swing Loan. Upon receipt of such notice and subject to the terms of this Agreement, the
Swingline Lender may make a Swing Loan available to the Borrower by making the proceeds thereof
available to the Administrative Agent and, in turn, the Administrative Agent shall make such
proceeds available to the Borrower on the date set forth in the relevant Swingline Request.




                (c) Refinancing Swing Loans. The Swingline Lender may at any time forward a demand to
the Administrative Agent (which the Administrative Agent shall, upon receipt, forward to each
Revolving Credit Lender) that each Revolving Credit Lender pay to the
Administrative Agent, for the account of the Swingline Lender, such Revolving Credit Lender’s
Pro Rata Share of all or a portion of the outstanding Swing Loans. Each Revolving Credit Lender
shall pay such Pro Rata Share to the Administrative Agent for the account of the Swingline Lender.
Upon receipt by the Administrative Agent of such payment (other than during the continuation of any
Event of Default under Section 9.1(e)), such Revolving Credit Lender shall be deemed to
have made a Revolving Loan to the Borrower, which, upon receipt of such payment by the Swingline
Lender from the Administrative Agent, the Borrower shall be deemed to have used in whole to
refinance such Swing Loan. In addition, regardless of whether any such demand is made, upon the
occurrence of any Event of Default under Section 9.1(e), each Revolving Credit Lender shall
be deemed to have acquired, without recourse or warranty, an undivided interest and



49









 






participation
in each Swing Loan in an amount equal to such Lender’s Pro Rata Share of such Swing Loan. If any
payment made by any Revolving Credit Lender as a result of any such demand is not deemed a
Revolving Loan, such payment shall be deemed a funding by such Lender of such participation. Such
participation shall not be otherwise required to be funded. Upon receipt by the Swingline Lender
of any payment from any Revolving Credit Lender pursuant to this clause (c) with respect to
any portion of any Swing Loan, the Swingline Lender shall promptly pay over to such Revolving
Credit Lender all payments of principal (to the extent received after such payment by such Lender)
and interest (to the extent accrued with respect to periods after such payment) received by the
Swingline Lender with respect to such portion.




                (d) Obligation to Fund Absolute. Each Revolving Credit Lender’s obligations pursuant
to clause (c) above shall be absolute, unconditional and irrevocable and shall be performed
strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever,
including (A) the existence of any setoff, claim, abatement, recoupment, defense or other right
that such Lender, any Affiliate thereof or any other Person may have against the Swing Loan Lender,
any other Secured Party or any other Person, (B) the failure of any condition precedent set forth
in Section 3.2 to be satisfied or the failure of the Borrower to deliver any notice set
forth in Section 2.2(a) (each of which requirements the Revolving Credit Lenders hereby
irrevocably waive) and (C) any adverse change in the condition (financial or otherwise) of any Loan
Party.




                Section 2.4 Letters of Credit. (a) Commitment and Conditions. On the terms and subject to the conditions contained
herein, each L/C Issuer agrees to Issue, at the request of the Borrower, in accordance with such
L/C Issuer’s usual and customary business practices, and for the account of the Borrower (or, as
long as the Borrower remains responsible for the payment in full of all amounts drawn thereunder
and related fees, costs and expenses, for the account of any Group Member), Letters of Credit
(denominated in Dollars in a minimum face amount of $1,000,000 for each Letter of Credit) from time
to time on any Business Day during the period from the Closing Date through the earlier of the
Revolving Credit Termination Date and 5 days prior to the Scheduled Revolving Credit Termination
Date; provided, however, that such L/C Issuer shall not be under any obligation to
Issue any Letter of Credit upon the occurrence of any of the following, after giving effect to such
Issuance:





                    (i) (A) the aggregate Revolving Credit Outstandings would exceed the aggregate
Revolving Credit Commitments or (B) the L/C Obligations for all Letters of Credit would
exceed the L/C Sublimit;




                    (ii) the expiration date of such Letter of Credit (A) is not a Business Day, (B) is
more than one year after the date of issuance thereof or (C) is later than 5 days prior to
the Scheduled Revolving Credit Termination Date; provided, however, that
any Letter of Credit with a term not exceeding one year may provide for its renewal for
additional one year periods as long as (x) each of the Borrower and such L/C Issuer have
the option to prevent such renewal before the expiration of such term or any such
additional one year period and (y) neither such L/C Issuer nor the Borrower shall permit
any such renewal to extend such expiration date beyond the date set forth in clause
(C) above; or




                    (iii) (A) any fee due in connection with, and on or prior to, such Issuance has not
been paid, (B) such Letter of Credit is requested to be Issued in a form that is not
acceptable to such L/C Issuer or (C) such L/C Issuer shall not have received,



50









 







each in form
and substance reasonably acceptable to it and duly executed by the Borrower (and, if such
Letter of Credit is issued for the account of any other Group Member, such Group Member),
the documents that such L/C Issuer generally uses in the ordinary course of its business
for the Issuance of letters of credit of the type of such Letter of Credit (collectively,
the “L/C Reimbursement Agreement”).


For each such Issuance, the applicable L/C Issuer may, but shall not be required to, determine
that, or take notice whether, the conditions precedent set forth in Section 3.2 have been
satisfied or waived in connection with the Issuance of any Letter of Credit; provided,
however, that no Letter of Credit shall be Issued during the period starting on the first
Business Day after the receipt by such L/C Issuer of notice from the Administrative Agent or the
Required Revolving Credit Lenders that any condition precedent contained in Section 3.2 is
not satisfied and ending on the date all such conditions are satisfied or duly waived.




                (b) Notice of Issuance. The Borrower shall give the relevant L/C Issuer and the
Administrative Agent a notice of any requested Issuance of any Letter of Credit, which shall be
effective only if received by such L/C Issuer and the Administrative Agent not later than 11:00
a.m. on the third Business Day prior to the date of such requested Issuance. Such notice may be
made in a writing substantially the form of Exhibit E duly completed or in a writing in any
other form acceptable to such L/C Issuer (an “L/C Request”) or by telephone if confirmed
promptly, but in any event within one Business Day and prior to such Issuance, with such an L/C
Request.




                (c) Reporting Obligations of L/C Issuers. Each L/C Issuer agrees to provide the
Administrative Agent (which, after receipt, the Administrative Agent shall provide to each
Revolving Credit Lender), in form and substance satisfactory to the Administrative Agent, each of
the following on the following dates: (i) on or prior to (A) any Issuance of any Letter of Credit
by such L/C Issuer, (B) any drawing under any such Letter of Credit or (C) any payment (or failure
to pay when due) by the Borrower of any related L/C Reimbursement Obligation, notice thereof, which
shall contain a reasonably detailed description of such Issuance, drawing or payment, (ii) upon the
request of the Administrative Agent (or any Revolving Credit Lender through the Administrative
Agent), copies of any Letter of Credit Issued by such L/C Issuer and any related L/C Reimbursement
Agreement and such other documents and information as may reasonably be requested by the
Administrative Agent and (iii) on the first Business Day of each calendar week, a schedule of the
Letters of Credit Issued by such L/C Issuer, in form and substance reasonably satisfactory to the
Administrative Agent, setting forth the L/C Obligations for such Letters of Credit outstanding on
the last Business Day of the previous calendar week.




                (d) Acquisition of Participations. Upon any Issuance of a Letter of Credit in
accordance with the terms of this Agreement resulting in any increase in the L/C Obligations, each
Revolving Credit Lender shall be deemed to have acquired, without recourse or warranty, an
undivided interest and participation in such Letter of Credit and the related L/C Obligations in an
amount equal to such Lender’s Pro Rata Share of such L/C Obligations.




                (e) Reimbursement Obligations of the Borrower. The Borrower agrees to pay to the L/C
Issuer of any Letter of Credit each L/C Reimbursement Obligation owing with respect to such Letter
of Credit no later than the first Business Day after the Borrower receives notice from such L/C
Issuer that payment has been made under such Letter of Credit or that such L/C Reimbursement
Obligation is otherwise due (the “L/C Reimbursement Date”) with interest thereon computed
as set forth in clause (i) below. In the event that any L/C Issuer incurs any



51









 






L/C
Reimbursement Obligation not repaid by the Borrower as provided in this clause (e) (or any
such payment by the Borrower is rescinded or set aside for any reason), such L/C Issuer shall
promptly notify the Administrative Agent of such failure (and, upon receipt of such notice, the
Administrative Agent shall forward a copy to each Revolving Credit Lender) and, irrespective of
whether such notice is given, such L/C Reimbursement Obligation shall be payable on demand by the
Borrower with interest thereon computed (i) from the date on which such L/C Reimbursement
Obligation arose to the L/C Reimbursement Date, at the interest rate applicable during such period
to Revolving Loans that are Base Rate Loans and (ii) thereafter until payment in full, at the
interest rate applicable during such period to past due Revolving Loans that are Base Rate Loans.




                (f) Reimbursement Obligations of the Revolving Credit Lenders. Upon receipt of the
notice described in clause (e) above from the Administrative Agent, each Revolving Credit
Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Pro Rata Share
of such L/C Reimbursement Obligation. By making such payment (other than during the continuation
of an Event of Default under Section 9.1(e)), such Lender shall be deemed to have made a
Revolving Loan to the Borrower, which, upon receipt thereof by such L/C Issuer, the Borrower shall
be deemed to have used in whole to repay such L/C Reimbursement Obligation. Any such payment that
is not deemed a Revolving Loan shall be deemed a funding by such Lender of its participation in the
applicable Letter of Credit and the related L/C Obligations. Such participation shall not
otherwise be required to be funded. Upon receipt by any L/C Issuer of any payment from any Lender
pursuant to this clause (f) with respect to any portion of any L/C Reimbursement
Obligation, such L/C Issuer shall promptly pay over to such Lender all payments received after such
payment by such L/C Issuer with respect to such portion.




                (g) Obligations Absolute. The obligations of the Borrower and the Revolving Credit
Lenders pursuant to clauses (d), (e) and (f) above shall be absolute,
unconditional and irrevocable and performed strictly in accordance with the terms of this Agreement
irrespective of (i) (A) the invalidity or unenforceability of any term or provision in any Letter
of Credit, any document transferring or purporting to transfer a Letter of Credit, any Loan
Document (including the sufficiency of any such instrument), or any modification to any provision
of any of the foregoing, (B) any document presented under a Letter of Credit being forged,
fraudulent, invalid, insufficient or inaccurate in any respect or failing to comply with the terms
of such Letter of Credit or (C) any loss or delay, including in the transmission of any document,
(ii) the existence of any setoff, claim, abatement, recoupment, defense or other right that any
Person (including any Group Member) may have against the beneficiary of any Letter of Credit or any
other Person, whether in connection with any Loan Document or any other Contractual Obligation or
transaction, or the existence of any other withholding, abatement or
reduction, (iii) in the case of the obligations of any Revolving Credit Lender, (A) the
failure of any condition precedent set forth in Section 3.2 to be satisfied (each of which
conditions precedent the Revolving Credit Lenders hereby irrevocably waive) or (B) any adverse
change in the condition (financial or otherwise) of any Loan Party and (iv) any other act or
omission to act or delay of any kind of any Secured Party or any other Person or any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section 2.4, constitute a legal or equitable discharge of any obligation
of the Borrower or any Revolving Credit Lender hereunder.




                Section 2.5 Reduction and Termination of the Commitments.




                (a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate in
whole or reduce in part ratably any unused portion of the Revolving Credit





52











 




Commitments or the Total
Unutilized Delayed-Draw Term Loan Commitment; provided, however, that each partial
reduction shall be in an aggregate amount that is an integral multiple of $1,000,000.




          (b) Mandatory. (i) The Total Commitment (and the Commitment of each Lender) shall
terminate in its entirety on July 8, 2011, unless the Closing Date has occurred on or prior to such
date.





     (ii) In addition to any other mandatory commitment reductions pursuant to this
Section 2.5(b), the Total A Term Loan Commitment (and the A Term Loan Commitment of
each Lender) shall terminate in its entirety on the Closing Date (after giving effect to
the incurrence of A Term Loans on such date).




     (iii) In addition to any other mandatory commitment reductions pursuant to this
Section 2.5(b), the Total B Term Loan Commitment (and the B Term Loan Commitment of
each Lender) shall terminate in its entirety on the Closing Date (after giving effect to
the incurrence of B Term Loans on such date).




     (iv) In addition to any other mandatory commitment reductions pursuant to this
Section 2.5(b), the Total Delayed-Draw Term Loan Commitment (and the Delayed-Draw
Term Loan Commitment of each Lender) shall terminate in its entirety (to the extent not
theretofore terminated) on the earlier of (i) the Delayed-Draw Term Loan Commitment
Termination Date (after giving effect to the incurrence of any Delayed-Draw Term Loans on
such date) and (ii) the date on which a Change of Control occurs.




     (v) The Total Delayed-Draw Term Loan Commitment shall be reduced on each date on
which Delayed-Draw Term Loans are incurred (after giving effect to the making of
Delayed-Draw Term Loans on such date) in an amount equal to the aggregate principal amount
of the Delayed-Draw Term Loans incurred on such date.




     (vi) In addition to any other mandatory commitment reductions pursuant to this
Section 2.5(b), the Total Revolving Credit Commitment shall terminate in its
entirety on the earlier of (i) the Revolving Credit Termination Date and (ii) the date on
which a Change of Control occurs.




     (vii) In addition to any other mandatory commitment reductions pursuant to this
Section 2.5(b), each of the Total Delayed-Draw Term Loan Commitment and the Total
Revolving Credit Commitment shall be permanently reduced from time to time to the extent
required by Section 2.12(b).




     (viii) Each reduction to, or termination of, the Total Revolving Credit Commitment or
the Total Delayed-Draw Term Loan Commitment pursuant to this Section 2.5(b) shall
be applied to proportionately reduce or terminate, as the case may be, the Revolving Credit
Commitment or the Delayed-Draw Term Loan Commitment, as the case may be, of each Lender
with such a Commitment.



          Section 2.6 Repayment of Loans. (a) The Borrower promises to repay the entire unpaid principal amount of each Tranche of Loans
on the respective Maturity Date for such Tranche of Loans.




53









 








          (b) In addition to any other mandatory repayments pursuant to Section 2.8, on each
date set forth below (each, a “Scheduled A Term Loan Repayment Date”), the Borrower shall
be required to repay that principal amount of A Term Loans, to the extent then outstanding, as is
set forth opposite each such date below (each such repayment, as the same may be reduced as
provided in Sections 2.12(a) and 2.12(b), a “Scheduled A Term Loan
Repayment”):




	 	 	 
	Scheduled A Term Loan Repayment Date	 	Amount
	December 31, 2011
	 	$7,812,500
	March 31, 2012
	 	$7,812,500
	June 30, 2012
	 	$7,812,500
	September 30, 2012
	 	$7,812,500
	December 31, 2012
	 	$7,812,500
	March 31, 2013
	 	$7,812,500
	June 30, 2013
	 	$7,812,500
	September 30, 2013
	 	$7,812,500
	December 31, 2013
	 	$7,812,500
	March 31, 2014
	 	$7,812,500
	June 30, 2014
	 	$7,812,500
	September 30, 2014
	 	$7,812,500
	December 31, 2014
	 	$7,812,500
	March 31, 2015
	 	$7,812,500
	June 30, 2015
	 	$7,812,500
	September 30, 2015
	 	$7,812,500
	December 31, 2015
	 	$7,812,500
	March 31, 2016
	 	$7,812,500
	Scheduled A Term Loan Maturity Date
	 	$484,375,000






54









 






          (c) In addition to any other mandatory repayments pursuant to Section 2.8, on each
date set forth below (each, a “Scheduled B Term Loan Repayment Date”), the Borrower shall
be required to repay that principal amount of B Term Loans, to the extent then outstanding, as is
set forth opposite each such date below (each such repayment, as the same may be reduced as
provided in Sections 2.12(a) and 2.12(b), a “Scheduled B Term Loan
Repayment”):




	 	 	 
	Scheduled B Term Loan Repayment Date	 	Amount
	December 31, 2011
	 	$2,312,500
	March 31, 2012
	 	$2,312,500
	June 30, 2012
	 	$2,312,500
	September 30, 2012
	 	$2,312,500
	December 31, 2012
	 	$2,312,500
	March 31, 2013
	 	$2,312,500
	June 30, 2013
	 	$2,312,500
	September 30, 2013
	 	$2,312,500
	December 31, 2013
	 	$2,312,500
	March 31, 2014
	 	$2,312,500
	June 30, 2014
	 	$2,312,500
	September 30, 2014
	 	$2,312,500
	December 31, 2014
	 	$2,312,500
	March 31, 2015
	 	$2,312,500
	June 30, 2015
	 	$2,312,500
	September 30, 2015
	 	$2,312,500
	December 31, 2015
	 	$2,312,500
	March 31, 2016
	 	$2,312,500
	June 30, 2016
	 	$2,312,500
	September 30, 2016
	 	$2,312,500






55









 






	 	 	 
	Scheduled B Term Loan Repayment Date	 	Amount
	December 31, 2016
	 	$2,312,500
	March 31, 2017
	 	$2,312,500
	Scheduled B Term Loan Maturity Date
	 	$874,125,000






          (d) In addition to any other mandatory repayments pursuant to Section 2.8, on each
date set forth below (each, a “Scheduled Delayed-Draw Term Loan Repayment Date”), the
Borrower shall be required to repay that principal amount of Delayed-Draw Term Loans, to the extent
then outstanding, as is equal to the product of (x) the aggregate principal amount of all
Delayed-Draw Term Loans outstanding on June 30, 2012 (after giving effect to any incurrence of such
Loans on such date) and (y) the respective percentage set forth opposite each such date below (each
such repayment, as the same may be reduced as provided in Sections 2.12(a) and
2.12(b), a “Scheduled Delayed-Draw Term Loan Repayment”):




	 	 	 
	Scheduled Delayed-Draw Term Loan Repayment	 	Scheduled Delayed-Draw
	Date	 	Repayment Instalment Percentage
	September 30, 2012
	 	1.25%
	December 31, 2012
	 	1.25%
	March 31, 2013
	 	1.25%
	June 30, 2013
	 	1.25%
	September 30, 2013
	 	1.25%
	December 31, 2013
	 	1.25%
	March 31, 2014
	 	1.25%
	June 31, 2014
	 	1.25%
	September 30, 2014
	 	1.25%
	December 31, 2014
	 	1.25%
	March 31, 2015
	 	1.25%
	June 30, 2015
	 	1.25%
	September 30, 2015
	 	1.25%
	December 31, 2015
	 	1.25%
	March 31, 2016
	 	1.25%
	Scheduled Delayed-Draw Term Loan Maturity Date
	 	81.25%






          Section 2.7 Optional Prepayments. The Borrower may prepay the outstanding principal amount of any Loan in whole or in part at any
time, without any premium or penalty (except as set forth in Section 2.11(d) and subject to
payment of any breakage costs that may be owing pursuant to Section 2.16(a) after giving
effect to such prepayment); provided, however, that (x) each partial prepayment
that is not of the entire outstanding amount under any




56









 







Facility shall be in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof and (y) at the
Borrower’s election, such prepayment shall not, so long as no Default or Event of Default then
exists, be applied to the Revolving Loans of a Defaulting Lender. Optional partial prepayment of
Term Loans shall be applied in the manner set forth in Section 2.12(a).




          Section 2.8 Mandatory Prepayments. (a) Excess Cash Flow. The Borrower shall pay or cause to be paid to the Administrative
Agent, within 10 Business Days after the last date Financial Statements can be delivered pursuant
to Section 6.1(b) for any Fiscal Year ending after the Closing Date, commencing with the
Fiscal Year ending December 31, 2012, an amount equal to 50% of the Excess Cash Flow for such
Fiscal Year; provided, however, in the event that the Consolidated Secured Leverage
Ratio of the Borrower as of the end of any Fiscal Year, commencing with the Fiscal Year ending
December 31, 2012, is equal to or less than (x) 3.50:1.00, then such percentage for such Fiscal
Year shall be reduced to 25% or (y) 2.50:1.00, then such percentage for such Fiscal Year shall be
reduced to 0%.




          (b) Debt Issuances. Upon receipt on or after the Closing Date by any Loan Party or
any of its Subsidiaries of Net Cash Proceeds arising from the incurrence by any Loan Party or any
of its Subsidiaries of Indebtedness of the type specified in clause (a) or (b) of
the definition thereof (other than any such Indebtedness permitted hereunder in reliance upon
Section 8.1), the Borrower shall immediately pay or cause to be paid to the Administrative
Agent an amount equal to 100% of such Net Cash Proceeds.




          (c) Asset Sales and Property Loss Events. Upon receipt on or after the Closing Date
by any Loan Party or any of its Subsidiaries of Net Cash Proceeds arising from (i) any Sale by any
Group Member of any of its property (other than Sales of its own Stock and Stock Equivalents and
Excluded Sales, as defined below) to the extent the Net Cash Proceeds thereof exceed $20,000,000 in
any Fiscal Year or (ii) any Property Loss Event with respect to any property of any Group Member to
the extent resulting, in the aggregate with all other such
Property Loss Events, in the receipt by any of them of Net Cash Proceeds in excess of
$20,000,000, the Borrower shall immediately pay or cause to be paid to the Administrative Agent an
amount equal to 100% of such Net Cash Proceeds (or, with respect to Sales of property permitted
hereunder in reliance upon clause (g) of Section 8.4, 50% of the Net Cash
Proceeds); provided, however, that, upon any such receipt, as long as no Event of
Default shall be continuing, any Group Member may make Permitted Reinvestments with such Net Cash
Proceeds and the Borrower shall not be required to make or cause such payment to the extent (x)
such Net Cash Proceeds are intended to be used to make Permitted Reinvestments and (y) on each
Reinvestment Prepayment Date for such Net Cash Proceeds, the Borrower shall pay or cause to be paid
to the Administrative Agent an amount equal to the Reinvestment Prepayment Amount applicable to
such Reinvestment Prepayment Date and such Net Cash Proceeds. “Excluded Sales” shall mean
(i) Sales of property permitted hereunder in reliance upon any of clauses (a) through
(d) and (f)(i) of Section 8.4, and (ii) Sales of property permitted
hereunder in reliance upon clauses (f)(ii) and (g) of Section 8.4 if after
giving effect to any such Sale and any prepayment of Loans under this Section 2.8(c) (on a
Pro Forma Basis as of the last day of the last Fiscal Quarter for which Financial Statements have
been delivered hereunder for the four Fiscal Quarter period ending on the last day of such Fiscal
Quarter, as if such Sale had occurred on the first day of such period), the Consolidated Secured
Leverage Ratio of the Borrower is not greater than 4.25:1.00 (it being understood that prepayments
from Sales of property permitted hereunder




57









 







in reliance upon clauses (f)(ii) and (g)
of Section 8.4 shall only be required to the extent necessary to reduce the Consolidated
Secured Leverage Ratio of the Borrower to 4.25:1.00).




          (d) Excess Outstandings. On any date on which the aggregate principal amount of
Revolving Credit Outstandings exceeds the aggregate Revolving Credit Commitments, the Borrower
shall pay to the Administrative Agent an amount equal to such excess.




          (e) Application of Payments. Any payments made to the Administrative Agent pursuant
to this Section 2.8 shall be applied to the Obligations in accordance with Section
2.12(b).




          (f) Change of Control. All outstanding Loans shall be repaid in full on the date on
which a Change of Control occurs.




          (g) No Premium or Penalty. Any mandatory prepayments under this Section 2.8
shall be made without any premium or penalty (except as set forth in Section 2.11(d) in
relation to any mandatory prepayment required pursuant to Section 2.8(b) above and subject
to payment of any breakage costs that may be owing pursuant to Section 2.16(a) after giving
effect to such prepayment).




          Section 2.9 Interest. (a) Rate. All Loans and the outstanding amount of all other Obligations (other than
pursuant to Secured Hedging Agreements and Secured Treasury Services Agreements) shall bear
interest, in the case of Loans, on the unpaid principal amount thereof from the date such Loans are
made and, in the case of such other Obligations, from the date such other Obligations are due and
payable until, in all cases, paid in full, except as otherwise provided in clause (c)
below, as follows: (i) in the case of Base Rate Loans, at a rate per annum equal to the sum of the
Base Rate and the Applicable Margin, each as in effect from time to time, (ii) in the case of
Eurodollar Rate Loans, at a rate per annum equal to the sum of the Eurodollar Rate and the
Applicable Margin, each as in effect for the applicable Interest Period, and (iii) in the case of
other Obligations, at a rate per
annum equal to the sum of the Base Rate and the Applicable Margin for Revolving Loans that are Base
Rate Loans, each as in effect from time to time.




          (b) Payments. Interest accrued shall be payable in arrears (i) if accrued on the
principal amount of any Loan, (A) at maturity (whether by acceleration or otherwise), (B) if such
Loan is a Term Loan, upon the payment or prepayment of the principal amount on which such interest
has accrued and (C)(1) if such Loan is a Base Rate Loan (including a Swing Loan), on the last day
of each calendar quarter after June 30, 2011, commencing on the first such day following the making
of such Loan, (2) if such Loan is a Eurodollar Rate Loan, on the last day of each Interest Period
applicable to such Loan and, if applicable, on each date during such Interest Period occurring
every 3 months from the first day of such Interest Period and (ii) if accrued on any other
Obligation, on demand from Administrative Agent after the time such Obligation is due and payable
(whether by acceleration or otherwise).




          (c) Default Interest. Notwithstanding the rates of interest specified in clause
(a) above or elsewhere in any Loan Document, effective immediately upon (A) the occurrence of
any Event of Default under Sections 9.1(a), 9.1(c)(i) (with respect to Article
V (Financial Covenants) only) or 9.1(e)(ii) or (B) the delivery of a notice by
the Administrative Agent or the Required Lenders to the Borrower during the continuance of any
other Event of Default and, in each case, for as long as such Event of Default shall be continuing,
the principal




58









 







balance of all Obligations (including any Obligation that bears interest by reference
to the rate applicable to any other Obligation) then due and payable shall bear interest at a rate
that is 2% per annum in excess of the interest rate applicable to such Obligations from time to
time, payable on demand or, in the absence of demand, on the date that would otherwise be
applicable.




          (d) Maximum Lawful Rate. Notwithstanding anything to the contrary set forth in this
Section 2.9, if a court of competent jurisdiction determines in a final order that the rate
of interest payable hereunder exceeds the highest rate of interest permissible under law (the
“Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the
rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided,
however, that if at any time thereafter the rate of interest payable hereunder is less than
the Maximum Lawful Rate, the Borrower shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Lenders is equal to the total
interest that would have been received had the interest rate payable hereunder been (but for the
operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided
in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in
the manner provided in clauses (a) through (c) of this Section 2.9, unless
and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this
paragraph shall again apply. In no event shall the total interest received by any Lender pursuant
to the terms hereof exceed the amount that such Lender could lawfully have received had the
interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the
Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at
a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which
such calculation is made. If, notwithstanding the provisions of this Section 2.9(d), a
court of competent jurisdiction shall finally determine that any Lender has received interest
hereunder in excess of the Maximum Lawful Rate, such Lender shall, to the extent permitted by
applicable law, promptly apply such excess in the order specified in Section 2.12 and
thereafter shall refund any excess to the Borrower or as a court of competent jurisdiction may
otherwise order.




          Section 2.10 Conversion and Continuation Options. (a) Option. The Borrower may elect (i) in the case of any Eurodollar Rate Loan, (A) to
continue such Eurodollar Rate Loan or any portion thereof for an additional Interest Period on the
last day of the Interest Period applicable thereto and (B) to convert such Eurodollar Rate Loan or
any portion thereof into a Base Rate Loan at any time on any Business Day, subject to the payment
of any breakage costs required by Section 2.16(a), and (ii) in the case of Base Rate Loans
(other than Swing Loans), to convert such Base Rate Loans or any portion thereof into Eurodollar
Rate Loans at any time on any Business Day upon 3 Business Days’ prior notice; provided,
however, that, (x) for each Interest Period, the aggregate amount of Eurodollar Rate Loans
having such Interest Period must be an integral multiple of $1,000,000 and (y) no conversion in
whole or in part of Base Rate Loans to Eurodollar Rate Loans and no continuation in whole or in
part of Eurodollar Rate Loans shall be permitted at any time at which (1) a Default or an Event of
Default shall be continuing and the Administrative Agent or the Required Lenders shall have
determined in their sole discretion not to permit such conversions or continuations or (2) such
continuation or conversion would be made during a suspension imposed by Section 2.15.




          (b) Procedure. Each such election shall be made by giving the Administrative Agent at
least 3 Business Days’ prior notice in substantially the form of Exhibit F (a “Notice
of Conversion or Continuation”) duly completed. The Administrative Agent shall promptly notify
each Lender of its receipt of a Notice of Conversion or Continuation and of the




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options selected
therein. If the Administrative Agent does not receive a timely Notice of Conversion or
Continuation from the Borrower containing a permitted election to continue or convert any
Eurodollar Rate Loan, then, upon the expiration of the applicable Interest Period, such Loan shall
be automatically converted to a Base Rate Loan. Each partial conversion or continuation shall be
allocated ratably among the Lenders in the applicable Facility in accordance with their Pro Rata Shares.




          Section 2.11 Fees. (a) Unused Commitment Fees. The Borrower agrees to pay to each Revolving Credit Lender
that is a Non-Defaulting Lender a commitment fee on the actual daily amount by which the Revolving
Credit Commitment of such Lender exceeds its Pro Rata Share of the sum of (i) the aggregate
outstanding principal amount of Revolving Loans and (ii) the outstanding amount of the L/C
Obligations for all Letters of Credit (the “Unused Revolver Commitment Fee”) from the date
hereof through the Revolving Credit Termination Date at a rate per annum equal to 0.50%, payable in
arrears (x) on the last day of each calendar quarter after June 30, 2011 and (y) on the Revolving
Credit Termination Date.




          (b) Delayed-Draw Commitment Fees. The Borrower agrees to pay to each Delayed-Draw
Term Loan Lender that is a Non-Defaulting Lender a commitment fee (the “Delayed-Draw Commitment
Fee”) on the actual daily amount by which the Delayed-Draw Term Loan Commitment exceeds its Pro
Rata Share of the aggregate outstanding principal amount of Delayed-Draw Term Loans from the date
hereof through the Delayed-Draw Term Loan Commitment Termination Date at a rate per annum equal to
0.75%, payable in arrears (x) on the last day of each calendar quarter after June 30, 2011 and (y)
on the Delayed-Draw Term Loan Commitment Termination Date.




          (c) Letter of Credit Fees. The Borrower agrees to pay, with respect to all Letters of
Credit issued by any L/C Issuer, (i) to such L/C Issuer, certain fees, documentary and processing
charges as separately agreed between the Borrower and such L/C Issuer or otherwise in accordance
with such L/C Issuer’s standard schedule in effect at the time of determination
thereof and (ii) to the Administrative Agent, for the benefit of the Revolving Credit Lenders
according to their Pro Rata Shares, a fee accruing at a rate per annum equal to the Applicable
Margin for Revolving Loans that are Eurodollar Rate Loans on the maximum undrawn face amount of
such Letters of Credit, payable in arrears (A) on the last day of each calendar quarter after June
30, 2011 ending after the issuance of such Letter of Credit and (B) on the Revolving Credit
Termination Date; provided, however, that the fee payable under this clause
(ii) shall be increased by 2% per annum and shall be payable, in addition to being payable on
any date it is otherwise required to be paid hereunder, on demand effective immediately upon (x)
the occurrence of any Event of Default under Sections 9.1(a), 9.1(c)(i) (with
respect to Article V (Financial Covenants) only) or Section 9.1(e)(ii) or (y) the delivery
of a notice by the Administrative Agent or the Required Lenders to the Borrower during the
continuance of any other Event of Default and, in each case, for as long as such Event of Default
shall be continuing.




          (d) Soft Call Protection on B Term Loans. At the time of the effectiveness of any
Repricing Event that is consummated on or prior to the first anniversary of the Closing Date, the
Borrower agrees to pay to the Administrative Agent, for the ratable account of each Term Lender
with outstanding B Term Loans which are repaid, prepaid or converted pursuant to such Repricing
Event (including each Term Lender that withholds its consent to such Repricing Event and is
replaced under Section 2.18), a fee in an amount equal to 1.00% of the aggregate principal
amount of all B Term Loans repaid, prepaid or converted in connection with such




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Repricing Event.
Such fees shall be due and payable upon the date of the effectiveness of such Repricing Event.




          (e) Additional Fees. The Borrower has agreed to pay to the Administrative Agent and
other Persons additional fees, the amount and dates of payment of which are embodied in the Fee
Letter and the Engagement Letter.




          Section 2.12 Application of Payments. (a) Application of Voluntary Prepayments. Subject to Section 2.12(c), any
prepayment of Term Loans pursuant to Section 2.7 shall be applied (x) pro rata to the
outstanding Tranches of Term Loans (with each Tranche of outstanding Term Loans to receive its Term
Loan Percentage of the applicable prepayment) and (y) to the remaining scheduled installments of
the respective Tranche of Term Loans as directed by the Borrower at the time of the respective
prepayment (and absent such direction, in direct order of maturity thereof).




          (b) Application of Mandatory Prepayments. Subject to the provisions of clause
(c) below with respect to the application of payments during the continuance of an Event of
Default, any payment made by the Borrower to the Administrative Agent pursuant to Section
2.8 or any other prepayment of the Obligations required to be applied in accordance with this
clause (b) shall be applied (i) first (other than in respect of any payment
required pursuant to Section 2.8(d)), (A) (x) to repay on a pro rata basis the outstanding
principal balance of the Term Loans (with each Tranche of outstanding Term Loans to receive its
Term Loan Percentage of the applicable repayment) and (y) to the extent in excess of the amounts
required to be applied pursuant to the preceding clause (A)(x), to reduce the Total Delayed-Draw
Term Loan Commitment (it being understood and agreed that the immediately preceding clause (y)
shall be deemed to be an application of proceeds for purposes of this Section 2.12(b) even
though cash is not actually applied) and (B) to reduce ratably the then remaining scheduled
installments of each respective Tranche of Term Loans on a pro rata basis, (ii) second to
repay the outstanding principal balance of the Revolving Loans and the Swing Loans (without any
reduction in the
Revolving Credit Commitments) and (iii) third, in the case of any payment required
pursuant to Section 2.8(d), to provide cash collateral to the extent and in the manner
provided in Section 9.3 and, then, any excess shall be retained by the Borrower.




          (c) Application of Payments During an Event of Default. The Borrower hereby
irrevocably waives, and agrees to cause each Loan Party and each other Group Member to waive, the
right to direct the application during the continuance of an Event of Default of any and all
payments or prepayments in respect of any Obligations and any proceeds of Collateral and agrees
that, notwithstanding the provisions of clause (a) above, the Administrative Agent may,
and, upon either (A) the direction of the Required Lenders or (B) the termination of any Commitment
or the acceleration of any Obligation pursuant to Section 9.2, shall, apply all payments in
respect of any Obligations, all funds on deposit in any Cash Collateral Account and all other
proceeds of Collateral (i) first, to pay Obligations in respect of any cost or expense
reimbursements, fees or indemnities then due to the Administrative Agent, (ii) second, to
pay Obligations in respect of any cost or expense reimbursements, fees or indemnities then due to
the Lenders and the L/C Issuers, (iii) third, to pay interest then due and payable in
respect of the Loans and L/C Reimbursement Obligations, (iv) fourth, to repay the
outstanding principal amounts of the Loans and L/C Reimbursement Obligations, to provide cash
collateral for Letters of Credit in the manner and to the extent described in Sections 2.20
and 9.3 and to pay amounts owing with respect to Secured Hedging Agreements and Secured
Treasury Services Agreements and (v) fifth, to the ratable payment of all other
Obligations.




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          (d) Application of Payments Generally. All payments that would otherwise be allocated
to the Revolving Credit Lenders pursuant to this Section 2.12 shall instead be allocated
first, to repay interest on Swing Loans, on any portion of the Revolving Loans that the
Administrative Agent may have advanced on behalf of any Lender and on any L/C Reimbursement
Obligation, in each case for which the Administrative Agent or, as the case may be, the L/C Issuer
has not then been reimbursed by such Lender or the Borrower, second to pay the outstanding
principal amount of the foregoing obligations and third, to repay the Revolving Loans. All
payments and prepayments of any Revolving Loans or Term Loans shall be applied first, to
repay such Loans outstanding as Base Rate Loans and then, to repay such Loans outstanding
as Eurodollar Rate Loans, with those Eurodollar Rate Loans having earlier expiring Interest Periods
being repaid prior to those having later expiring Interest Periods. All payments and prepayments
of Term Loans shall be applied to reduce ratably the remaining installments of such outstanding
principal amounts of the Term Loans (provided that any voluntary prepayment of Term Loans
shall be applied as set forth in clause (a) of this Section 2.12). If sufficient
amounts are not available to repay all outstanding Obligations described in any priority level set
forth in this Section 2.12, the available amounts shall be applied, unless otherwise
expressly specified herein, to such Obligations ratably based on the proportion of the Secured
Parties’ interest in such Obligations. Any priority level set forth in this Section 2.12
that includes interest shall include all such interest, whether or not accruing after the filing of
any petition in bankruptcy or the commencement of any insolvency, reorganization or similar
proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any
such proceeding.




          Section 2.13 Payments and Computations. (a) Procedure. The Borrower shall make each payment under any Loan Document not later
than 11:00 a.m. on the day when due to the Administrative Agent by wire transfer to the following
account (or at such other account or by such other means to such other address as the
Administrative Agent shall have notified the Borrower in writing within a reasonable time prior to
such payment) in immediately available Dollars and without setoff or counterclaim:




ABA No.: 021-001-033

Account Number: 502-87-265

Deutsche Bank Trust Company Americas, New York, New York:

Account Name: General Electric Capital Corporation

                     — HFS CF Agented Deals

Reference: Alere Inc., LLC/HFS2939



The Administrative Agent shall promptly thereafter cause to be distributed immediately available
funds relating to the payment of principal, interest or fees to the Lenders, in accordance with the
application of payments set forth in Section 2.12. The Lenders shall make any payment
under any Loan Document in immediately available Dollars and without setoff or counterclaim. Each
Revolving Credit Lender shall make each payment for the account of any L/C Issuer or Swingline
Lender required pursuant to Section 2.3 or 2.4 (A) if the notice or demand therefor
was received by such Lender prior to 11:00 a.m. on any Business Day, on such Business Day and (B)
otherwise, on the Business Day following such receipt. Payments received by the Administrative
Agent after 11:00 a.m. shall be deemed to be received on the next Business Day.




          (b) Computations of Interests and Fees. All computations of interest and of fees
shall be made by the Administrative Agent on the basis of a year of 360 days (or, in the case




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of
Base Rate Loans, 365/366 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 and fees are payable.
Each determination of an interest rate or the amount of a fee hereunder shall be made by the
Administrative Agent (including determinations of a Eurodollar Rate or Base Rate in accordance with
the definitions of “Eurodollar Rate” and “Base Rate”, respectively) and shall be conclusive,
binding and final for all purposes, absent manifest error.




          (c) Payment Dates. Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, the due date for such payment shall be extended to the next succeeding
Business Day without any increase in such payment as a result of additional interest or fees;
provided, however, that such interest and fees shall continue accruing as a result
of such extension of time.




          (d) Advancing Payments. Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due 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 Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the Borrower shall not have
made such payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender together with interest
thereon (at the Federal Funds Rate for the first Business Day and thereafter, at the rate
applicable to Base Rate Loans under the applicable Facility) for each day from the date such amount
is distributed to such Lender until the date such Lender repays such amount to the Administrative
Agent.




          Section 2.14 Evidence of Debt. (a) Records of Lenders. Each Lender shall maintain in accordance with its usual
practice accounts evidencing Indebtedness of the Borrower to such Lender resulting from each Loan
of such Lender from time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Agreement. In addition, each Lender having sold a
participation in any of its Obligations or having identified an SPV as such to the Administrative
Agent, acting as agent of the Borrower solely for this purpose and solely for U.S. federal income
tax purposes, shall establish and maintain at its address referred to in Section 11.11 (or
at such other address as such Lender shall notify the Borrower) a record of ownership, in which
such Lender shall register by book entry (A) the name and address of each such participant and SPV
(and each change thereto, whether by assignment or otherwise) and (B) the rights, interest or
obligation of each such participant and SPV in any Obligation, in any Commitment and in any right
to receive any payment hereunder; provided that no Lender shall have any obligation to
disclose all or any portion of such information to any Person (including the identity of any SPV or
Person who purchases a participation in any Obligation or any information relating to either the
SPV’s or Person who purchases a participation’s interest in any Commitments, Loans, L/C Obligations
or its other obligations under any Loan Document) except to the extent that the relevant parties,
in good faith, determine that such disclosure is necessary to establish that such interest in a
Commitment, Loan, L/C Obligation or other obligation is in “registered form” under Section 163(f),
871(h)(2) and 881(c)(2) of the Code and any related regulations (and any successor provisions).
Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be
made by the relevant Lender directly and solely to the IRS. The entries in the records maintained
by a Lender shall be conclusive and binding absent manifest error, and such Lender shall treat each




63









 







Person whose name is recorded in their records as the owner of such interest in any Commitments,
Loans, L/C Obligations or other obligations under any Loan Document for all purposes of this
Agreement notwithstanding any notice to the contrary.




          (b) Records of Administrative Agent. The Administrative Agent, acting as agent of the
Borrower solely for U.S. federal income tax purposes and solely with respect to the actions
described in this Section 2.14, shall establish and maintain at its address referred to in
Section 11.11 (or at such other address as the Administrative Agent may notify the
Borrower) (A) a record of ownership (the “Register”) in which the Administrative Agent
agrees to register by book entry the interests (including any rights to receive payment hereunder)
of the Administrative Agent, each Lender and each L/C Issuer in the Term Loans and the Revolving
Credit Outstandings, each of their obligations under this Agreement to participate in each Loan,
Letter of Credit and L/C Reimbursement Obligation, and any assignment of any such interest,
obligation or right and (B) accounts in the Register in accordance with its usual practice in which
it shall record (1) the names and addresses of the Lenders and the L/C Issuers (and each change
thereto pursuant to Section 2.18 (Substitution of Lenders) and Section 11.2
(Assignments and Participations; Binding Effect), (2) the Commitments of each Lender, (3)
the amount of each Loan and each funding of any participation described in clause (A)
above, and for Eurodollar Rate Loans, the Interest Period applicable thereto, (4) the amount of any
principal or interest due and payable or paid, (5) the amount of the L/C Reimbursement Obligations
due and payable or paid and (6) any other payment received by the Administrative Agent from the
Borrower and its application to the Obligations.




          (c) Registered Obligations. Notwithstanding anything to the contrary contained in
this Agreement, the Loans (including any Notes evidencing such Loans and, in the case of Revolving
Loans, the corresponding obligations to participate in L/C Obligations and
Swing Loans) and the L/C Reimbursement Obligations are registered obligations, the right,
title and interest of the Lenders and the L/C Issuers and their assignees in and to such Loans or
L/C Reimbursement Obligations, as the case may be, shall be transferable only upon notation of such
transfer in the Register and no assignment thereof shall be effective until recorded therein. This
Section 2.14 and Section 11.2 shall be construed so that the Loans and L/C
Reimbursement Obligations are at all times maintained in “registered form” within the
meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and
any successor provisions).




          (d) Prima Facie Evidence. The entries made in the Register and in the accounts
maintained pursuant to clauses (a) and (b) above shall, to the extent permitted by
applicable Requirements of Law, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided, however, that no error in such account and
no failure of any Lender or the Administrative Agent to maintain any such account shall affect the
obligations of any Loan Party to repay the Loans in accordance with their terms. In addition, the
Loan Parties, the Administrative Agent, the Lenders and the L/C Issuers shall treat each Person
whose name is recorded in the Register as a Lender or L/C Issuer, as applicable, for all purposes
of this Agreement. Information contained in the Register with respect to any Lender or any L/C
Issuer shall be available for access by the Borrower, the Administrative Agent, such Lender or such
L/C Issuer at any reasonable time and from time to time upon reasonable prior notice. No Lender or
L/C Issuer shall, in such capacity, have access to or be otherwise permitted to review any
information in the Register other than information with respect to such Lender or L/C Issuer unless
otherwise agreed by the Administrative Agent.




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          (e) Notes. Upon any Lender’s request, the Borrower shall promptly execute and deliver
Notes to such Lender evidencing the Loans of such Lender in a Facility, and substantially in the
form of Exhibit B-1, B-2, B-3, B-4 or B-5, as applicable;
provided, however, that only one Note for each Facility shall be issued to each
Lender, except (i) to an existing Lender exchanging existing Notes to reflect changes in the
Register relating to such Lender, in which case the new Notes delivered to such Lender shall be
dated the date of the original Notes and (ii) in the case of loss, destruction or mutilation of
existing Notes and similar circumstances. Each Note, if issued, shall only be issued as means to
evidence the right, title or interest of a Lender or a registered assignee in and to the related
Loan, as set forth in the Register, and in no event shall any Note be considered a bearer
instrument or obligation.




          Section 2.15 Suspension of Eurodollar Rate Option. Notwithstanding any provision to the contrary in this Article II, the following shall
apply:




          (a) Interest Rate Unascertainable, Inadequate or Unfair. In the event that (A) the
Administrative Agent determines that adequate and fair means do not exist for ascertaining the
applicable interest rates by reference to which the Eurodollar Rate is determined or (B) the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period
will not adequately reflect the cost to the Lenders of making or maintaining such Loans for such
Interest Period, the Administrative Agent shall promptly so notify the Borrower and the Lenders,
whereupon the obligation of each Lender to make or to continue Eurodollar Rate Loans shall be
suspended as provided in clause (c) below until the Administrative Agent shall notify the
Borrower that the Required Lenders have determined that the circumstances causing such suspension
no longer exist.




          (b) Illegality. If any Lender determines that the introduction of, or any change in
or in the interpretation of, any Requirement of Law after the date of this Agreement shall make it
unlawful, or any Governmental Authority shall assert that it is unlawful, for any Lender or its
applicable lending office to make Eurodollar Rate Loans or to continue to fund or maintain
Eurodollar Rate Loans, then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, the obligation of such Lender to make or to continue Eurodollar
Rate Loans shall be suspended as provided in clause (c) below until such Lender shall,
through the Administrative Agent, notify the Borrower that it has determined that it may lawfully
make Eurodollar Rate Loans.




          (c) Effect of Suspension. If the obligation of any Lender to make or to continue
Eurodollar Rate Loans is suspended, (A) the obligation of such Lender to convert Base Rate Loans
into Eurodollar Rate Loans shall be suspended, (B) such Lender shall make a Base Rate Loan at any
time such Lender would otherwise be obligated to make a Eurodollar Rate Loan, (C) the Borrower may
revoke any pending Notice of Borrowing or Notice of Conversion or Continuation to make or continue
any Eurodollar Rate Loan or to convert any Base Rate Loan into a Eurodollar Rate Loan and (D) each
Eurodollar Rate Loan of such Lender shall automatically and immediately (or, in the case of any
suspension pursuant to clause (a) above, on the last day of the current Interest Period
thereof) be converted into a Base Rate Loan.




          Section 2.16 Breakage Costs; Increased Costs; Capital Requirements. (a) Breakage Costs. The Borrower shall compensate each Lender, upon demand from such
Lender to the Borrower (with copy to the Administrative Agent), for all Liabilities (including, in
each case, those incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to prepare to fund, to fund or to maintain the Eurodollar Rate Loans of
such




65









 







Lender to the Borrower but excluding any loss of the Applicable Margin on the relevant Loans)
that such Lender may incur (A) to the extent, for any reason other than solely by reason of such
Lender being a Non-Funding Lender, a proposed Borrowing, conversion into or continuation of
Eurodollar Rate Loans does not occur on a date specified therefor in a Notice of Borrowing or a
Notice of Conversion or Continuation or in a similar request made by telephone by the Borrower, (B)
to the extent any Eurodollar Rate Loan is paid (whether through a scheduled, optional or mandatory
prepayment) or converted to a Base Rate Loan (including because of Section 2.15) on a date
that is not the last day of the applicable Interest Period or (C) as a consequence of any failure
by the Borrower to repay Eurodollar Rate Loans when required by the terms hereof. For purposes of
this clause (a), each Lender shall be deemed to have funded each Eurodollar Rate Loan made
by it using a matching deposit or other borrowing in the London interbank market.




          (b) Increased Costs. If at any time any Lender or L/C Issuer determines that, after
the later of (x) the date hereof and (y) the date such Lender or L/C Issuer entered into this
Agreement (including by assignment) as such, the adoption of, or any change in or in the
interpretation, application or administration of, or compliance with, any Requirement of Law (other
than any imposition or increase of Eurodollar Reserve Requirements) from any Governmental Authority
shall have the effect of (i) increasing the cost to such Lender of making, funding or maintaining
any Eurodollar Rate Loan or to agree to do so or of participating, or agreeing to participate, in
extensions of credit, (ii) increasing the cost to such L/C Issuer of Issuing or maintaining any
Letter of Credit or of agreeing to do so or (iii) imposing any other cost to such Lender or L/C
Issuer with respect to compliance with its obligations under any Loan Document, then, upon demand
by such Lender or L/C Issuer (with copy to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender or
L/C Issuer amounts sufficient to compensate such Lender or L/C Issuer for such increased cost.




          (c) Increased Capital Requirements. If at any time any Lender or L/C Issuer
determines that, after the later of (x) the date hereof and (y) the date such Lender or L/C Issuer
entered into this Agreement (including by assignment) as such, the adoption of, or any change in or
in the interpretation, application or administration of, or compliance with, any Requirement of Law
(other than any imposition or increase of Eurodollar Reserve Requirements) from any Governmental
Authority regarding capital adequacy, reserves, special deposits, compulsory loans, insurance
charges against property of, deposits with or for the account of, Obligations owing to, or other
credit extended or participated in by, any Lender or L/C Issuer or any similar requirement (in each
case other than any imposition or increase of Eurodollar Reserve Requirements) shall have the
effect of reducing the rate of return on the capital of such Lender or L/C Issuer (or any
corporation controlling such Lender or L/C Issuer) as a consequence of its obligations under or
with respect to any Loan Document or Letter of Credit to a level below that which, taking into
account the capital adequacy policies of such Lender, L/C Issuer or corporation, such Lender, L/C
Issuer or corporation could have achieved but for such adoption or change, then, upon demand from
time to time by such Lender or L/C Issuer (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to the Administrative Agent for the account of such Lender amounts
sufficient to compensate such Lender for such reduction.




          (d) Compensation Certificate. Each demand for compensation under this Section
2.16 shall be accompanied by a certificate of the Lender or L/C Issuer claiming such
compensation, setting forth in reasonable detail the amounts to be paid hereunder, which
certificate shall be conclusive, binding and final for all purposes, absent manifest error. In




66









 







determining such amount, such Lender or L/C Issuer may use any reasonable averaging and attribution
methods.




          (e) Notwithstanding anything in this Agreement to the contrary, (x) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or
issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by
the Bank for International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or the United States regulatory authorities, in each case pursuant
to Basel III, shall in each case be deemed to be a change after the Closing Date in a requirement
of law or governmental rule, regulation or order, regardless of the date enacted, adopted, issued
or implemented for all purposes under or in connection with this Agreement (including this
Section 2.16).




          (f) Notwithstanding anything to the contrary in this Section 2.16, the Borrower shall
not be required to compensate a Lender pursuant to this Section 2.16 for any amounts
incurred more than 270 days prior to the date that such Lender notifies the Borrower of such
Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise
to such claim have a retroactive effect, then such 270-day period shall be extended to include the
period of such retroactive effect.




          Section 2.17 Taxes. (a) Payments Free and Clear of Taxes. Except as otherwise provided in this Section
2.17, each payment by any Loan Party under any Loan Document shall be made free and clear of
all Taxes. “Taxes” shall mean all present or future taxes and levies, imposts, deductions,
charges or
withholdings that in each case are imposed by a Governmental Authority, including any interest,
additions to tax or penalties applicable thereto, but excluding any (i) taxes measured by net
income (including branch profits or similar taxes) and franchise taxes imposed in lieu of net
income taxes, in each case imposed on any Secured Party as a result of a present or former
connection between such Secured Party and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein (other than such
connection arising solely from any Secured Party having executed, delivered or performed its
obligations or received a payment under, received or perfected a security interest under, or
enforced or become a party to or engaged in any other transactions pursuant to or sold or assigned
an interest in any Loan Document), (ii) United States federal withholding taxes to the extent that
the obligation to withhold amounts existed on the date that such Secured Party became a “Secured
Party” hereunder or designates a new lending office, except to the extent such Secured Party is a
direct or indirect assignee (other than pursuant to clause (iii) of Section
2.18(a) (Substitution of Lenders)) of any other Secured Party that was entitled, at the time
the assignment from such other Secured Party became effective, to receive additional amounts under
this clause, (iii) taxes (including withholding taxes) that would not have been imposed but for the
failure by any Secured Party to deliver the documentation required to be delivered pursuant to
clause (f) below, (iv) any United States federal withholding tax that would not have been
imposed but for a failure by a Secured Party (or any financial institution through which any
payment is made to such Secured Party) to comply with the applicable requirements of FATCA and (v)
Other Taxes.




          (b) Gross-Up. If any Taxes shall be required by law to be deducted from or in respect
of any amount payable under any Loan Document (other than any Secured Hedging Agreement or any
Secured Treasury Services Agreement) to any Secured Party (i) such amount shall be increased as
necessary to ensure that, after all required deductions for such Taxes are made (including
deductions applicable to any increases to any amount under this Section 2.17),




67









 







such Secured
Party receives the amount it would have received had no such deductions been made, (ii) the
relevant Loan Party shall make such deductions, (iii) the relevant Loan Party shall timely pay the
full amount deducted to the relevant taxing authority or other authority in accordance with
applicable Requirements of Law and (iv) within 30 days after such payment is made, or as soon as
practicable thereafter, the relevant Loan Party shall deliver to the Administrative Agent an
original or certified copy of a receipt evidencing such payment.




          (c) Other Taxes. In addition, the Borrower agrees to pay, and authorizes the
Administrative Agent to pay in its name, any stamp, documentary, excise or property tax, charges or
similar levies imposed by any applicable Requirement of Law or Governmental Authority and all
Liabilities with respect thereto (including by reason of any delay in payment thereof), in each
case arising from the execution, delivery or registration of, or otherwise with respect to, any
Loan Document or any transaction contemplated therein (collectively, “Other Taxes”). The
Swingline Lender may, without any need for notice, demand or consent from the Borrower, by making
funds available to the Administrative Agent in the amount equal to any such payment, make a Swing
Loan to the Borrower in such amount, the proceeds of which shall be used by the Administrative
Agent in whole to make such payment. Within 30 days after the date of any payment of Taxes or
Other Taxes by any Loan Party, the Borrower shall furnish to the Administrative Agent, at its
address referred to in Section 11.11, the original or a certified copy of a receipt
evidencing payment thereof.




          (d) Indemnification. The Borrower shall reimburse and indemnify, within 30 days after
receipt of demand therefor (with copy to the Administrative Agent), each Secured
Party for all Taxes and Other Taxes (including any Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.17) paid by such Secured Party and any
Liabilities arising therefrom or with respect thereto to a Governmental Authority, whether or not
such Taxes or Other Taxes were correctly or legally asserted. A certificate of the Secured Party
(or of the Administrative Agent on behalf of such Secured Party) claiming any compensation under
this clause (d), setting forth the amounts to be paid thereunder and delivered to the
Borrower with copy to the Administrative Agent, shall be conclusive, binding and final for all
purposes, absent manifest error. In determining such amount, the Administrative Agent and such
Secured Party may use any reasonable averaging and attribution methods.




          (e) Mitigation. Any Lender claiming any additional amounts payable pursuant to this
Section 2.17 shall use its reasonable efforts (consistent with its internal policies and
Requirements of Law) to file any certificate or document reasonably requested in writing by
Borrower or to change the jurisdiction of its lending office if such a change would reduce any such
additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole
determination of such Lender, be otherwise disadvantageous to such Lender. If the Borrower pays
any additional amount under this Section 2.17 to a Lender and such Lender determines in its
sole discretion that it has actually received in connection therewith any refund of its Tax
liabilities in or with respect to the taxable year in which the additional amount is paid (a
“Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in
its sole discretion, determine is equal to the net benefit, after tax, which was obtained by such
Lender in such year as a consequence of such Tax Benefit; provided, however, that
(i) any Lender may determine, in its sole discretion consistent with the policies of such Lender,
whether to seek a Tax Benefit, (ii) any Taxes that are imposed on a Lender as a result of a
disallowance or reduction of any Tax Benefit with respect to which such Lender has made a payment
to the Borrower pursuant to this Section 2.17(e) shall be treated as a Tax for which the
Borrower is obligated to indemnify




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such Lender pursuant to this Section 2.17 without any
exclusions or defenses, (iii) nothing in this Section 2.17(e) shall require any Lender to
disclose any confidential information to the Borrower (including, without limitation, its tax
returns), and (iv) no Lender shall be required to pay any amounts pursuant to this Section
2.17(e) at any time when a Default or an Event of Default exists.




          (f) Tax Forms. (i) Each Non-U.S. Lender Party that, at any of the following times, is
entitled to an exemption from United States withholding tax or, after a change in any Requirement
of Law, is subject to such withholding tax at a reduced rate under an applicable tax treaty, shall
(w) on or prior to the date such Non-U.S. Lender Party becomes a “Non-U.S. Lender Party” hereunder,
(x) on or prior to the date on which any such form or certification expires or becomes obsolete,
(y) after the occurrence of any event requiring a change in the most recent form or certification
previously delivered by it pursuant to this clause (i) and (z) from time to time if
requested by the Borrower or the Administrative Agent (or, in the case of a participant or SPV, the
relevant Lender), provide the Administrative Agent and the Borrower (or, in the case of a
participant or SPV, the relevant Lender) with two completed originals of each of the following, as
applicable: (A) Forms W-8ECI (claiming exemption from U.S. withholding tax because the income is
effectively connected with a U.S. trade or business), W-8BEN (claiming exemption from, or a
reduction of, U.S. withholding tax under an income tax treaty) or any successor forms, (B) in the
case of a Non-U.S. Lender Party claiming exemption under Sections 871(h) or 881(c) of the Code,
Form W-8BEN (claiming exemption from U.S. withholding tax under the portfolio interest exemption)
or any successor form and a certificate in form and substance acceptable to the Administrative
Agent (or Lender, in the case of a participant or SPV) that such Non-U.S. Lender Party is not (1) a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a
“10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the
Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code or (C)
any other applicable document prescribed by the IRS certifying as to the entitlement of such
Non-U.S. Lender Party to such exemption from United States withholding tax or reduced rate with
respect to all payments to be made to such Non-U.S. Lender Party under the Loan Documents. In
addition, each Non-U.S. Lender Party shall, in the case of any payment subject to FATCA in respect
of any Loan, Letters of Credit, Note or Obligation, provide any forms, documentation, or other
information as shall be prescribed by the IRS to demonstrate that the relevant Non-U.S. Lender
Party has complied with the applicable reporting requirements of FATCA so that such payments made
to such Non-U.S. Lender Party hereunder would not be subject to U.S. federal withholding taxes
imposed by FATCA. Unless the Borrower and the Administrative Agent have received forms or other
documents satisfactory to them indicating that payments under any Loan Document to or for a
Non-U.S. Lender Party are not subject to United States withholding tax or are subject to such tax
at a rate reduced by an applicable tax treaty, the Loan Parties and the Administrative Agent shall
withhold amounts required to be withheld by applicable Requirements of Law from such payments at
the applicable statutory rate.





     (ii) Each U.S. Lender Party shall (A) on or prior to the date such U.S. Lender Party
becomes a “U.S. Lender Party” hereunder, (B) on or prior to the date on which any such form
or certification expires or becomes obsolete, (C) after the occurrence of any event
requiring a change in the most recent form or certification previously delivered by it
pursuant to this clause (f) and (D) from time to time if requested by the Borrower
or the Administrative Agent (or, in the case of a participant or SPV, the relevant Lender),
provide the Administrative Agent and the Borrower (or, in the case of a participant or SPV,
the relevant Lender) with two completed originals of Form



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W-9 (certifying that such U.S.
Lender Party is entitled to an exemption from U.S. backup withholding tax) or any successor
form.




     (iii) Each Lender having sold a participation in any of its Obligations or identified
an SPV as such to the Administrative Agent shall collect from such participant or SPV the
documents described in this clause (f) and provide them to the Administrative Agent
and the Borrower.



          Notwithstanding the foregoing, a U.S. Lender Party and a Non-U.S. Lender Party shall be
treated as having complied with the requirements and delivered the documentation required by this
clause (f) if, after the time such U.S. Lender Party or Non-U.S. Lender Party has become a
Lender hereunder, a change in a Requirement of Law or change in circumstance with respect to the
Borrower subjects any such Lender to taxes (including withholding taxes) and such Lender is unable
to provide the forms herein allowing for an exemption from or reduction in such taxes.




          Section 2.18 Substitution of Lenders. (a) Substitution Right. In the event that any Lender in any Facility that is not an
Affiliate of the Administrative Agent (an “Affected Lender”), (i) makes a claim under
clause (b) (Increased Costs) or (c) (Increased Capital
Requirements) of Section 2.16, (ii) notifies the Borrower pursuant to Section
2.15(b) (Illegality) that it becomes illegal for such Lender to continue to fund or
make any Eurodollar Rate Loan in such Facility, (iii) makes a claim for payment pursuant to
Section 2.17(b) (Taxes), (iv) becomes a Non-Funding Lender with respect to such
Facility, (v) becomes a Defaulting Lender or (vi) does not consent to any amendment, waiver or
consent to any Loan
Document for which the consent of the Required Lenders is obtained but that requires the consent of
other Lenders in such Facility, the Borrower may either pay in full such Affected Lender with
respect to amounts due in such Facility with the consent of the Administrative Agent or substitute
for such Affected Lender in such Facility any Lender or any Affiliate or Approved Fund of any
Lender (none of whom shall constitute a Defaulting Lender) or any other Person acceptable (which
acceptance shall not be unreasonably withheld or delayed) to the Administrative Agent (in each
case, a “Substitute Lender”).




          (b) Procedure. To substitute such Affected Lender or pay in full the Obligations owed
to such Affected Lender under such Facility, the Borrower shall deliver a notice to the
Administrative Agent and such Affected Lender. The effectiveness of such payment or substitution
shall be subject to the delivery to the Administrative Agent by the Borrower (or, as may be
applicable in the case of a substitution, by the Substitute Lender) of (i) payment for the account
of such Affected Lender of, to the extent accrued through, and outstanding on, the effective date
for such payment or substitution, all Obligations owing to such Affected Lender with respect to
such Facility (including those that will be owed because of such payment and all Obligations that
would be owed to such Lender if it was solely a Lender in such Facility), (ii) in the case of a
payment in full of the Obligations owing to such Affected Lender in the Revolving Credit Facility,
payment of any amount that, after giving effect to the termination of the Commitment of such
Affected Lender, is required to be paid pursuant to Section 2.8(d) (Excess
Outstandings) and (iii) in the case of a substitution, (A) payment of the assignment fee set
forth in Section 11.2(c) and (B) an assumption agreement in form and substance satisfactory
to the Administrative Agent whereby the Substitute Lender shall, among other things, agree to be
bound by the terms of the Loan Documents and assume the relevant Revolving Credit Commitment or
Delayed-Draw Term Loan Commitment (as applicable) of the Affected Lender under such Facility.




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          (c) Effectiveness. Upon satisfaction of the conditions set forth in clause
(b) above, the Administrative Agent shall record such substitution or payment in the Register,
whereupon (i) in the case of any payment in full in any Facility, such Affected Lender’s
Commitments in such Facility shall be terminated and (ii) in the case of any substitution in any
Facility, (A) the Affected Lender shall sell and be relieved of, and the Substitute Lender shall
purchase and assume, all rights and claims of such Affected Lender under the Loan Documents with
respect to such Facility, except that the Affected Lender shall retain such rights expressly
providing that they survive the repayment of the Obligations and the termination of the
Commitments, (B) the Substitute Lender shall become a “Lender” hereunder having a
Commitment in such Facility in the amount of such Affected Lender’s Commitment in such Facility and
(C) the Affected Lender shall execute and deliver to the Administrative Agent an Assignment to
evidence such substitution and deliver any Note in its possession with respect to such Facility;
provided, however, that the failure of any Affected Lender to execute any such
Assignment or deliver any such Note shall not render such sale and purchase (or the corresponding
assignment) invalid.




          Section 2.19 Incremental Term Loans. (a) The Borrower may, at any time after the Closing Date, at the Borrower’s written request to
the Administrative Agent, request that one or more Lenders and/or other financial institutions that
will become Lenders hereunder (x) make incremental term loans hereunder either through adding such
incremental term loans to the outstanding principal amount of the B Term Loans hereunder or through
a separate Tranche of Term Loans hereunder (such incremental term loans, in either
case, “Incremental Term Loans” and the commitments to which such Incremental Term Loans
relate, the “Incremental Term Loan Commitments”); provided that:





     (i) the aggregate principal amount of any requested Incremental Term Loans shall be in
a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof;




     (ii) the Loan Parties shall execute and deliver such agreements, instruments,
documents, resolutions, opinions of counsel, solvency certificate and officer’s
certificates and take such other actions as may be reasonably requested by the
Administrative Agent in connection with such Incremental Term Loan Commitments;




     (iii) no Default or Event of Default shall have occurred and be continuing or would
occur after giving effect to the incurrence of the respective Incremental Term Loans
pursuant to such Incremental Term Loan Commitments and the application of proceeds
therefrom;




     (iv) all of the representations and warranties contained herein and in the other Loan
Documents are true and correct in all material respects (it being understood that (x) any
representation or warranty that is qualified by materiality or Material Adverse Effect
shall be required to be true and correct in all respects and (y) any representation or
warranty which by its terms is made as of a specified date shall be required to be true and
correct in all material respects (or all respects, as the case may be) as of such specified
date);




     (v) the Borrower shall be in compliance, on a Pro Forma Basis (and assuming the full
utilization of the respective Incremental Term Loan Commitments), as of the last day of the
most recently ended Fiscal Quarter on or prior to the date of the



71









 







respective incurrence of
Incremental Term Loans pursuant to such Incremental Term Loan Commitments, as if such
Incremental Term Loans had been incurred (and, if incurred to finance a Permitted
Acquisition, as if such Permitted Acquisition had been consummated) on the first day of the
four Fiscal Quarter period ended on the last day of the most recently ended Fiscal Quarter
(and after giving effect to any other Pro Forma Transaction that is consummated after the
beginning of the most recently ended Fiscal Quarter but prior to or simultaneously with the
borrowing of such Incremental Term Loans), with (x) each of the financial covenants
specified in Sections 5.1 and 5.2 (but assuming for the purpose of
compliance, on a Pro Forma Basis with the maximum Consolidated Secured Leverage Ratio set
forth in Section 5.1, that the maximum Consolidated Secured Leverage Ratio
permitted at such time was 4.25:100) and (y) a Consolidated Total Leverage Ratio of no
greater than 7.00:1.00;




     (vi) the Incremental Term Loans made under this Section 2.19 shall have an
Incremental Term Loan Maturity Date no earlier than the Scheduled B Term Loan Maturity Date
and shall have a Weighted Average Life to Maturity no shorter than the then remaining
Weighted Average Life to Maturity of the B Term Loans; provided, however,
if the new Incremental Term Loans to be made pursuant this Section 2.19 are, at the
Borrower’s election, to be added to the aggregate outstanding principal amount of the B
Term Loans, such Incremental Term Loans shall have the same Maturity Date as the B Term
Loans and shall have the same scheduled amortization dates as the B Term Loans pursuant to
Section 2.6(c), and with the amount of each scheduled amortization
payment applicable to such new Incremental Term Loans to be the same (on a
proportionate basis) as was previously applicable to the remaining scheduled amortization
payments of the B Term Loans, thereby increasing the amount of each then remaining
scheduled amortization payment of the B Term Loans pursuant to Section 2.6(c)
proportionately;




     (vii) if the Applicable Margins for any Tranche of Incremental Term Loans made under
this Section 2.19 (which, for such purposes only, shall be deemed to include,
without duplication, all up-front or similar fees or original issue discount (amortized
over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four
years) payable to all Lenders providing such Tranche of Incremental Term Loans and any
Eurodollar Rate floor or Base Rate floor applicable to such Incremental Term Loans, but
exclusive of any arrangement, structuring or other fees payable in connection therewith
that are not shared with all Lenders providing such Tranche of Incremental Term Loans)
determined as of the initial funding date for such Tranche of Incremental Term Loans
exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include,
without duplication, all up-front or similar fees or original issue discount that was
originally payable to all Lenders that provided the B Term Loans on the date of incurrence
thereof and any Eurodollar Rate floor or Base Rate floor then applicable to the B Term
Loans) relating to the B Term Loans immediately prior to the making of such Tranche of
Incremental Term Loans by more than 0.50%, then the Applicable Margin relating to the B
Term Loans shall be adjusted to be equal to the Applicable Margin (determined as provided
above) relating to such Tranche of Incremental Term Loans minus 0.50%; provided,
however, if such Tranche of Incremental Term Loans is, at the Borrower’s election,
to be added to the aggregate outstanding principal amount of the B Term Loans, then the
Applicable Margin (determined as provided above) for the B Term Loans shall be increased to
be equal to



72









 







the Applicable Margin (as determined as provided above) relating to such
Tranche of Incremental Term Loans;




     (viii) except as expressly set forth above, prior to the date on which all B Term
Loans have been repaid in full, all other terms and conditions with respect to any
Incremental Term Loans made pursuant to this Section 2.19 shall be the same as the
terms and conditions applying to the B Term Loans, provided that any Tranche of
Incremental Term Loans may provide that different terms and conditions apply after such
date;




     (ix) the Borrower shall have demonstrated to the Administrative Agent’s reasonable
satisfaction that the full amount of the Incremental Term Loans to be incurred may be
incurred without violating the terms of any other material Indebtedness of the Borrower or
any of its Subsidiaries or the documentation governing any such Indebtedness (excluding any
such Indebtedness that is to be refinanced in whole with the proceeds of such Incremental
Term Loans in compliance with this Agreement and the other Loan Documents); and




     (x) the Borrower shall have delivered to the Administrative Agent and each Lender a
certificate executed by a Responsible Officer of the Borrower, (A) certifying compliance
with the requirements of preceding clauses (i) through (ix), inclusive, and (B) containing
the calculations (in reasonable detail) required by the preceding clauses (v), (vi) and
(vii).


Any request under this Section 2.19 shall be submitted by the Borrower in writing to the
Administrative Agent (which shall promptly forward copies to the Lenders). The Borrower may also
specify any fees offered to those Lenders and other financial institutions that will become Lenders
hereunder (the “Increasing Lenders”) that agree to provide Incremental Term Loan
Commitments (which fees, as it relates to any Lender or other financial institution that will
become a Lender, may be variable based upon the amount of Incremental Term Loan Commitments that
any such Lender or other financial institution is willing to provide). No Lender shall have any
obligation, express or implied, to provide Incremental Term Loan Commitments. Only the consent of
each Increasing Lender shall be required pursuant to this Section 2.19 in connection with
the provision or implementation of any Incremental Term Loan Commitments or incurrence of
Incremental Term Loans thereunder. No Lender which declines to provide Incremental Term Loan
Commitments may be replaced with respect to its existing Term Loans as a result thereof without
such Lender’s consent.




          (b) Each Increasing Lender shall as soon as reasonably practicable specify in writing the
amount of the proposed Incremental Term Loan Commitments that it is willing to provide
(provided that any Lender not so responding within 5 Business Days (or such shorter period
as may be specified by the Administrative Agent) shall be deemed to have declined such a request).
The Borrower may accept some or all of the offered amounts or designate new lenders that are
reasonably acceptable to the Administrative Agent as additional Lenders hereunder in accordance
with this Section 2.19 (but only to the extent that such new lender would otherwise be
eligible to be a Lender hereunder pursuant to Section 11.2(b), including by reason of
obtaining all necessary consents thereunder in accordance with the terms thereof) (each such new
lender being a “New Lender”), which New Lenders may provide all or a portion of the
aggregate principal amount of the applicable Incremental Term Loan Commitments.




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          (c) Subject to the foregoing, any increase requested by the Borrower shall be effective upon
(A) delivery to the Administrative Agent of each of the following documents: (i) a notice of such
increase to the Increasing Lenders and New Lenders, in form and substance reasonably acceptable to
the Administrative Agent, signed by a Responsible Officer of the Borrower; (ii) to the extent
requested by any New Lender or Increasing Lender, executed Incremental Term Loan Notes issued by
the Borrower in accordance with Section 2.14(e); (iii) an amendment (an “Incremental
Term Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed
by the Borrower, each other applicable Loan Party, each Increasing Lender (if any), each New Lender
(if any) and the Administrative Agent, to the extent necessary or appropriate in the reasonable
opinion of the Administrative Agent to give effect to any Incremental Term Loans to be made
pursuant to this Section 2.19 in each case on terms consistent with this Section
2.19; and (iv) any other certificates or documents that the Administrative Agent shall
reasonably request, in form and substance reasonably satisfactory to the Administrative Agent, and
(B) satisfaction on the effective date of any Incremental Term Loan Amendment and the making of
each Incremental Term Loan Commitments of (x) each of the applicable conditions specified in
Section 3.2, and (y) such other conditions (if any) as the parties thereto shall mutually
agree as set forth in the respective Incremental Term Loan Amendment. Notwithstanding anything to
the contrary in Section 11.1, the Administrative Agent is expressly permitted, without the
consent of the other Lenders, to enter into the Incremental Term Loan Amendment.




          Section 2.20 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender
or Delayed-Draw Term Loan Lender becomes a Defaulting Lender, then the following provisions shall
apply for so long as such Revolving Credit Lender or Delayed-Draw Term Loan Lender, as the case may
be, is a Defaulting Lender:




          (a) if any Swing Loan Exposure or L/C Exposure exists at the time a Revolving Credit Lender
becomes a Defaulting Lender then:





          (i) all or any part of such Swing Loan Exposure and L/C Exposure shall be reallocated
among the Revolving Credit Lenders that are Non-Defaulting Lenders in accordance with their
respective Revolving Credit Percentages but only to the extent (x) the sum of the
Individual Exposures of all Revolving Credit Lenders that are Non-Defaulting Lenders plus
such Defaulting Lender’s Swing Loan Exposure and L/C Exposure does not exceed the aggregate
amount of the Revolving Credit Commitments of all Revolving Credit Lenders that are
Non-Defaulting Lenders, (y) immediately following the reallocation to a Revolving Credit
Lender that is a Non-Defaulting Lender, the Individual Exposure of such Revolving Credit
Lender does not exceed its Revolving Credit Commitment at such time and (z) the conditions
set forth in Section 3.2 are satisfied at such time;




          (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within two Business Days following notice by the
Administrative Agent (x) first, prepay such Swing Loan Exposure and (y)
second, cash collateralize in a manner reasonably satisfactory to the applicable
L/C Issuer such Defaulting Lender’s L/C Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) in aggregate amount equal to 105% of such
Defaulting Lender’s L/C Exposure for so long as such L/C Exposure is outstanding (the
“L/C Back-Stop Arrangements”);



74









 






          (iii) the Borrower shall not be required to pay any fees to such Defaulting Lender
pursuant to Section 2.11(c) with respect to such Defaulting Lender’s L/C Exposure;




          (iv) if the L/C Exposure of the Non-Defaulting Lenders is reallocated pursuant to this
Section 2.20(a), then the fees payable to the Revolving Credit Lenders that are
Non-Defaulting Lenders pursuant to Section 2.11(c) shall be adjusted in accordance
with such Revolving Credit Lenders’ Revolving Credit Percentages; and




          (v) if any Defaulting Lender’s L/C Exposure is neither cash collateralized nor
reallocated pursuant to this Section 2.20(a), then, without prejudice to any rights
or remedies of any L/C Issuer or any Revolving Credit Lender hereunder, all Letter of
Credit fees payable under Section 2.11(c) with respect to such Defaulting Lender’s
L/C Exposure shall be payable to each L/C Issuer until such L/C Exposure is cash
collateralized and/or reallocated;



          (b) in the case of a Lender Default with respect to a Revolving Credit Lender, the Borrower
shall not be required to pay any fees to any such Revolving Credit Lender that is a Defaulting
Lender as provided in Section 2.11(a) with respect to such Defaulting Lender’s unused
Revolving Credit Commitments;




          (c) in the case of a Lender Default with respect to a Delayed-Draw Term Loan Lender, the
Borrower shall not be required to pay any fees to any such Delayed-Draw Term Loan Lender that is a
Defaulting Lender as provided in Section 2.11(b) with respect to such Defaulting Lender’s
Delayed-Draw Term Loan Commitment;




          (d) notwithstanding anything to the contrary contained in Section 2.1(a) or
Section 2.4, so long as any Revolving Credit Lender is a Defaulting Lender (i) the
Swingline Lender shall not be required to fund any Swing Loan and no L/C Issuer shall be required
to issue, amend, renew or increase any Letter of Credit, unless it is satisfied that the related
exposure will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders
and/or cash collateral has been provided by the Borrower in accordance with Section
2.20(a), and (ii) participating interests in any such newly issued or increased Letter of
Credit or newly made Swing Loan shall be allocated among Revolving Credit Lenders that are
Non-Defaulting Lenders in a manner consistent with Section 2.20(a)(i) (and Defaulting
Lenders shall not participate therein); and




          (e) in the event that the Administrative Agent, the Borrower, each L/C Issuer and the
Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that
caused such Revolving Credit Lender or Delayed-Draw Term Loan Lender to be a Defaulting Lender,
then (i) in the case of any Revolving Credit Lender, such Revolving Credit Lender shall again be
entitled (commencing as of the time of such determination) to any fees payable to it as a
Non-Defaulting Lender pursuant to Section 2.11(a) with respect to its unused Revolving
Credit Commitments and pursuant to Section 2.11(c) with respect to outstanding Letters of
Credit, (ii) in the case of any Delayed-Draw Term Loan Lender, such Delayed-Draw Term Loan Lender
shall again be entitled (commencing as of the time of such determination) to any fees payable to it
as a Non-Defaulting Lender pursuant to Section 2.11(b) with respect to its Delayed-Draw
Term Loan Commitment, (iii) in the case of any Revolving Credit Lender, the Swing Loan Exposure and
L/C Exposure of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such
Revolving Credit Lender’s Revolving Credit Commitments and on




75









 







such date such Revolving Credit
Lender shall purchase at par such of the Revolving Loans of the other Revolving Credit Lenders
(other than Swing Loans) as the Administrative Agent shall determine may be necessary in order for
such Revolving Credit Lender to hold such Revolving Loans in accordance with its Revolving Credit
Percentage and (iv) so long as no Event of Default then exists, all funds held as cash collateral
pursuant to the L/C Back-Stop Arrangements shall thereafter be promptly returned to the Borrower.
If the Revolving Credit Commitments have been terminated, all other Revolving Credit Obligations
have been paid in full and no Letters of Credit are outstanding, then, so long as no Event of
Default then exists, all funds held as cash collateral pursuant to the L/C Back-Stop Arrangements
shall thereafter be promptly returned to the Borrower.




          Section 2.21 Reverse Dutch Auction Repurchases. (a) The Borrower may from time to time, at its discretion, conduct modified reverse Dutch
auctions in order to purchase Term Loans (each, an “Auction”), and with each such Auction
to be managed exclusively by an investment bank of recognized standing selected by the Borrower (in
such capacity, the “Auction Manager”), so long as the following conditions are satisfied:





          (i) each Auction shall be conducted in accordance with the procedures, terms and
conditions set forth in this Section 2.21 and on Schedule 2.21 hereto;




          (ii) no Default or Event of Default shall have occurred and be continuing on the date
of the delivery of each Auction Notice and at the time of purchase of any Term Loans in
connection with any Auction;




          (iii) each Auction shall be open and offered to all Lenders of the relevant Tranche of
Term Loans on a pro rata basis;




          (iv) the minimum principal amount (calculated on the face amount thereof) of Term
Loans that the Borrower shall offer to purchase in any such Auction shall be no less than
$25,000,000 (unless another amount is agreed to by the Administrative Agent);




          (v) the aggregate principal amount (calculated on the face amount thereof) of all Term
Loans purchased by the Borrower pursuant to an Auction shall automatically be canceled and
retired by the Borrower on the settlement date of the relevant purchase (and may not be
resold);




          (vi) the Loan Parties shall be in compliance, on a Pro Forma Basis, with the financial
covenants in Sections 5.1 and 5.2 for the four Fiscal Quarter period most
recently ended on or prior to the date of the respective purchase of Term Loans pursuant to
such Auction;




          (vii) no proceeds of Revolving Loans or Swing Loans may be used to consummate an
Auction;




          (viii) no more than one Auction may be ongoing at any one time;




          (ix) no more than three Auctions may be made in any 365-day period; and



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          (x) at the time of each purchase of Term Loans through an Auction, the Borrower shall
have delivered to the Auction Manager and the Administrative Agent an officer’s certificate
of a Responsible Officer of the Borrower certifying as to compliance with preceding clauses
(ii), (vi) and (vii) (and containing the calculations (in reasonable detail) required by
preceding clause (vi)).



          (b) The Borrower must terminate an Auction if it fails to satisfy one or more of the
conditions set forth above which are required to be met at the time which otherwise would have been
the time of purchase of Term Loans pursuant to the respective Auction. If the Borrower commences
any Auction (and all relevant requirements set forth above which are required to be satisfied at
the time of the commencement of the respective Auction have in fact been satisfied), and if at such
time of commencement the Borrower believes in good faith that all required conditions set forth
above which are required to be satisfied at the time of the purchase of Term Loans pursuant to such
Auction shall be satisfied, then the Borrower shall have no liability to any Lender for any
termination of the respective Auction as a result of its failure to satisfy one or more of the
conditions set forth above which are required to be met at the time which otherwise would have been
the time of purchase of Term Loans pursuant to the respective Auction, and any such failure shall
not result in any Default or Event of Default hereunder. With respect to all purchases of Term
Loans made by the Borrower pursuant to this Section 2.21, (x) the Borrower shall pay on the
settlement date of each such purchase all accrued and unpaid
interest (except to the extent otherwise set forth in the relevant offering documents), if
any, on the purchased Term Loans up to the settlement date of such purchase and (y) such purchases
(and the payments made by the Borrower and the cancellation of the purchased Term Loans, in each
case in connection therewith) shall not constitute voluntary or mandatory payments or prepayments
for purposes of Sections 2.7 and 2.8 and Section 11.9 (although the par
principal amount of Term Loans of the respective Tranche so purchased pursuant to this Section
2.21 shall be applied to reduce the remaining scheduled installments of such Tranche of Term
Loans pursuant to Section 2.6(b) and (c) of the applicable Lenders being repaid on
a pro rata basis (based on the remaining principal amount thereof) without affecting the scheduled
installments of such Tranche of Term Loans relating to the Lenders whose Term Loans have not been
so purchased).




          (c) The Administrative Agent and the Lenders hereby consent to the Auctions and the other
transactions contemplated by this Section 2.21 (provided that no Lender shall have
an obligation to participate in any such Auctions) and hereby waive the requirements of any
provision of this Agreement (including, without limitation, Sections 2.7 and 2.8
and Section 11.9 (it being understood and acknowledged that purchases of the Term Loans by
the Borrower contemplated by this Section 2.21 shall not constitute Investments by the
Borrower)) or any other Loan Document that may otherwise prohibit any Auction or any other
transaction contemplated by this Section 2.21. The Auction Manager acting in its capacity
as such hereunder shall be entitled to the benefits of the provisions of Article X and
Sections 11.3 and 11.4 mutatis mutandis as if each
reference therein to the “Administrative Agent” were a reference to the Auction Manager, and the
Administrative Agent shall cooperate with the Auction Manager as reasonably requested by the
Auction Manager in order to enable it to perform its responsibilities and duties in connection with
each Auction.




          (d) Each Lender participating in any Auction hereby acknowledges and agrees that in connection
with such Auction (1) the Borrower may have, and later may come into possession of, information
regarding the Loans or the Loan Parties hereunder that is not known to such Lender and that may be
material to a decision by such Lender to participate in such Auction




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(such information, the
“Excluded Information”), (2) such Lender has independently, without reliance on the
Borrower, any of its Subsidiaries, the Administrative Agent, any Joint Lead Arranger or any of
their respective Affiliates, made its own analysis and determination to participate in such Auction
notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the
Borrower, any of its Subsidiaries, the Administrative Agent, any Joint Lead Arranger or any of
their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives
and releases, to the extent permitted by law, any claims such Lender may have against the Borrower,
any of its Subsidiaries, the Administrative Agent, any Joint Lead Arranger and their respective
Affiliates, under applicable law or otherwise, with respect to the nondisclosure of the Excluded
Information. Each Lender participating in any Auction further acknowledges that the Excluded
Information may not be available to the Administrative Agent, the Joint Lead Arrangers or the other
Lenders.




ARTICLE III

CONDITIONS TO LOANS AND LETTERS OF CREDIT




          Section 3.1 Conditions Precedent to Loans and Letters of Credit on the Closing
Date. The obligation of each Lender to make any Loan on the Closing Date and the obligation of each
L/C Issuer to Issue any Letter of Credit on the Closing Date is subject to the satisfaction or due
waiver of each of the following conditions precedent:



          (a) Certain Documents. The Administrative Agent shall have received on or prior to
the Closing Date each of the following, each dated as of the Closing Date unless otherwise agreed
by the Administrative Agent, in form and substance reasonably satisfactory to the Administrative
Agent and each Lender:





          (i) this Agreement duly executed by the Borrower and, for the account of each Lender
having requested the same by notice to the Administrative Agent and the Borrower received
by each at least 3 Business Days prior to the Closing Date (or such later date as may be
agreed by the Borrower), Notes in each applicable Facility conforming to the requirements
set forth in Section 2.14(e);




          (ii) the Guaranty and Security Agreement, duly executed by each Loan Party, together
with (A) copies of UCC, Intellectual Property and other appropriate search reports and of
all effective prior filings listed therein, together with evidence of the termination of
such prior filings and other documents with respect to the priority of the security
interest of the Administrative Agent in the Collateral, in each case as may be reasonably
requested by the Administrative Agent, (B) except to the extent otherwise expressly
provided under Section 7.13 or as may be agreed to by the Administrative Agent, all
documents representing all Securities, chattel paper and instruments being pledged pursuant
to such Guaranty and Security Agreement and related undated powers or endorsements duly
executed in blank, and (C) except to the extent otherwise expressly provided under
Section 7.13, all Control Agreements that, in the reasonable judgment of the
Administrative Agent, are required for the Loan Parties to comply with the Loan Documents
as of the Closing Date, each duly executed by the parties thereto;




          (iii) a pledge agreement in respect of 66% of the issued Stock in Swissco, governed by
Swiss law, duly executed by Alere International Holding Corp. (as amended, modified,
restated and/or supplemented from time to time, the “Swiss Pledge Agreement”)
together with all share certificates and undated powers or endorsements



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duly executed in
blank in relation to 66% of the issued Stock of Swissco, and Alere International Holding
Corp. and Swissco shall have taken such actions as may be necessary or advisable under
local law (as advised by local counsel) to create, effect, perfect, preserve, maintain and
protect the security interests granted (or purported to be granted) thereby;




     (iv) (A) except to the extent otherwise expressly provided under Section 7.13,
from Foley Hoag LLP, special counsel to the Loan Parties in New York and special counsel in
each other jurisdiction in which a Loan Party is organized, duly executed favorable legal
opinions satisfactory to the Administrative Agent, each addressed to the Administrative
Agent, the L/C Issuers and the Lenders and addressing such matters as the Administrative
Agent may reasonably request, and (B) from Schellenberg Wittmer, Swiss counsel to the
Administrative Agent, a duly executed favorable legal opinion with respect to the validity
and enforceability of the Swiss Pledge Agreement, addressed to the Administrative Agent,
the L/C Issuer and the Lenders;




     (v) a copy of each Constituent Document of each Loan Party that is on file with any
Governmental Authority in any jurisdiction, certified as of a recent date by such
Governmental Authority, together with, if applicable, certificates attesting to the good
standing of such Loan Party in such jurisdiction;




     (vi) a certificate of the secretary, assistant secretary or other officer of each Loan
Party in charge of maintaining books and records of such Loan Party certifying as to (A)
the names and signatures of each officer of such Loan Party authorized to execute and
deliver any Loan Document and who will execute any such Loan Document, (B) the Constituent
Documents of such Loan Party attached to such certificate are complete and correct copies
of such Constituent Documents as in effect on the date of such certification (or, for any
such Constituent Document delivered pursuant to clause (v) above, that there have
been no changes from such Constituent Document so delivered) and (C) except to the extent
otherwise expressly provided under Section 7.13, the resolutions of such Loan
Party’s board of directors or other appropriate governing body approving and authorizing
the execution, delivery and performance of each Loan Document to which such Loan Party is a
party;




     (vii) a certificate of a Responsible Officer of the Borrower to the effect that each
condition set forth in Section 3.2(b) has been satisfied;




     (viii) a certificate of a Responsible Officer of the Borrower to the effect that the
Borrower and its Subsidiaries taken as a group on a consolidated basis are Solvent after
giving effect to the initial Loans and Letters of Credit, the consummation of the
Transactions (and any Permitted Stock Repurchases which are consummated on the Closing
Date), the application of the proceeds thereof in accordance with Section 7.9 and
the payment of all estimated legal, accounting and other fees and expenses related hereto
and thereto;




     (ix) insurance certificates in form and substance satisfactory to the Administrative
Agent demonstrating that the insurance policies required by Section 7.5 are in full
force and effect and have all endorsements required by such Section 7.5;



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          (x) copies of the financial statements and projections referred to in Section
4.4; and




          (xi) such other documents and information as any Lender through the Administrative
Agent may reasonably request.



          (b) Fees and Expenses. (i) There shall have been paid to the Administrative Agent,
for the account of the Administrative Agent, its Related Persons, any L/C Issuer, any Arranger or
any Lender, as the case may be, all fees and all reimbursements of costs or expenses, in each case
due and payable under any Loan Document or the Engagement Letter on or before the Closing Date and
which are presented to the Borrower no less than one Business Day prior to the Closing Date.





          (ii) The Borrower shall have paid to the Administrative Agent, for the benefit of each
Lender which holds A Term Loan Commitments, B Term Loan Commitments, Delayed-Draw Term Loan
Commitments and/or Revolving Credit
Commitments as of the Closing Date, an initial upfront commitment fee in an amount
separately agreed upon among the Borrower, the Arrangers and each such Lender.



          (c) Refinancing; Indebtedness.





          (i) On the Closing Date and concurrently with the funding of the Loans hereunder, all
Indebtedness under each of the Existing Credit Agreements and the existing Interest Rate
Contracts with JPMorgan Chase Bank, N.A. shall have been repaid or redeemed in full and all
commitments in respect thereof shall have been terminated and all Liens and guaranties in
connection therewith shall have been terminated (as evidenced by a payoff letter,
appropriate releases (including Intellectual Property releases), termination statements,
instruments of assignment or other documentation reasonably satisfactory to the
Administrative Agent).




          (ii) On the Closing Date and after giving effect to the consummation of the
Transactions (and any Permitted Stock Repurchases which are consummated on the Closing
Date), the Borrower and its Subsidiaries shall have no outstanding Indebtedness, except for
(i) Indebtedness pursuant to or in respect of the Loan Documents and (ii) other
Indebtedness permitted by Section 8.1. The Administrative Agent shall have
received evidence in form, scope and substance reasonably satisfactory to it that the
matters set forth in this Section 3.1(c) have been satisfied on the Closing Date.



          (d) Existing Notes. No consents or approvals shall be required to be obtained by the
Borrower or any of its Subsidiaries from the holders of any of the Existing Notes in connection
with the entering into of this Agreement or any of the other Loan Documents or other documents
referred herein (including, without limitation, any of the Security Documents) and the incurrence
of all Loans hereunder. The Administrative Agent shall have received evidence (including
appropriate legal opinions and a certificate of a Responsible Officer of the Borrower) in form,
scope and substance reasonably satisfactory to it that the matters set forth in this clause
(d) have been satisfied.




          (e) Public Debt Ratings. On or prior to the Closing Date, the Borrower shall have
obtained (i) debt ratings (of any level) from S&P and Moody’s in respect of each Tranche of




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Loans
existing on the Closing Date and (ii) corporate credit and corporate family ratings (of any level)
from S&P and Moody’s, each of which ratings shall be in effect on the Closing Date.




          (f) Patriot Act. On or prior to the Closing Date, the Administrative Agent and the
Lenders shall have received all documentation and other information required by regulatory
authorities under applicable “know your customer” and anti-money laundering rules and regulations,
including the Patriot Act, in each case to the extent requested in writing at least five Business
Days prior to the Closing Date.




          Section 3.2 Conditions Precedent to Each Loan and Letter of Credit. The obligation of each Lender on any date (including the Closing Date) to make any Loan and of
each L/C Issuer on any date (including the Closing Date) to Issue any Letter of Credit is subject
to the satisfaction of each of the following conditions precedent:




          (a) Request. The Administrative Agent (and, in the case of any Issuance, the relevant
L/C Issuer) shall have received, to the extent required by Article II, a written, timely
and
duly executed and completed Notice of Borrowing, Swingline Request or, as the case may be, L/C
Request.




          (b) Representations and Warranties; No Defaults. The following statements shall be
true on such date, both before and after giving effect to such Loan or, as applicable, such
Issuance: (i) the representations and warranties set forth in any Loan Document shall be true and
correct in all material respects (provided that if any representation or warranty is by its terms
qualified by concepts of materiality, such representation shall be true and correct in all
respects) on and as of such date or, to the extent such representations and warranties expressly
relate to an earlier date, on and as of such earlier date and (ii) no Default or Event of Default
shall be continuing.



The representations and warranties set forth in any Notice of Borrowing, Swingline Request or L/C
Request (or any certificate delivered in connection therewith) shall be deemed to be made again on
and as of the date of the relevant Loan or Issuance and the acceptance of the proceeds thereof or
of the delivery of the relevant Letter of Credit.




          Section 3.3 Determinations of Initial Borrowing Conditions. For purposes of determining compliance with the conditions specified in Section 3.1,
each Lender shall be deemed to be satisfied with each document and each other matter required to be
satisfactory to such Lender unless, prior to the Closing Date, the Administrative Agent receives
notice from such Lender specifying such Lender’s objections and such Lender has not made available
its Pro Rata Share of any Borrowing scheduled to be made on the Closing Date.




ARTICLE IV

REPRESENTATIONS AND WARRANTIES




          To induce the Lenders, the L/C Issuers and the Administrative Agent to enter into the Loan
Documents, the Borrower (and, to the extent set forth in any other Loan Document, each other Loan
Party) represents and warrants to each of them each of the following on and as of each date
applicable pursuant to Section 3.2:




          Section 4.1 Corporate Existence; Compliance with Law. Each Group Member (a) is duly
organized, validly existing and in good standing under the laws of
the




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jurisdiction of its organization, (b) is duly qualified to do business as a foreign entity and
in good standing under the laws of each jurisdiction where such qualification is necessary, except
where the failure to be so qualified or in good standing could not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect, (c) has, in all material
respects, all requisite power and authority and the legal right to own, pledge, mortgage and
operate its property, to lease or sublease any property it operates under lease or sublease and to
conduct its business as now or currently proposed to be conducted, (d) is in compliance with its
Constituent Documents, (e) is in compliance with all applicable Requirements of Law (including all
Healthcare Laws and all Trade Control Laws) except where the failure to be in compliance could not
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect
and (f) has all necessary Permits from or by, has made all necessary filings with, and has given
all necessary notices to, each Governmental Authority having jurisdiction, to the extent required
for such ownership, lease, sublease, operation, occupation or conduct of business, except
where the failure to obtain such Permits, make such filings or give such notices could not
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.




          Section 4.2 Loan Documents. (a) Power and Authority. The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is a party and the consummation by each Loan Party of the
Transactions and other transactions contemplated herein (i) are within such Loan Party’s corporate
or similar powers and, at the time of execution thereof, have been duly authorized by all necessary
corporate and similar action (including, if applicable, consent of holders of its Securities), (ii)
do not (A) contravene such Loan Party’s Constituent Documents, (B) violate any Requirement of Law,
(C) conflict with, contravene, constitute a default or breach under, any material Contractual
Obligation of any Loan Party or any of its Subsidiaries, other than those which could not
reasonably be expected to have either individually or in the aggregate, a Material Adverse Effect,
or (D) result in the imposition of any Lien (other than a Permitted Lien) upon any property of any
Loan Party or any of its Subsidiaries and (iii) do not require any Loan Party to obtain any Permit
of, or make any filing with, any Governmental Authority or obtain any consent of, or notice to, any
Person, other than (A) with respect to the Loan Documents, the filings required to perfect the
Liens created by the Loan Documents, (B) filings of (or relating to) the Loan Documents after the
Closing Date with the SEC pursuant to the Borrower’s public disclosure obligations under applicable
United States federal securities laws and/or the rules of any securities exchange on which the
Borrower’s securities are listed and (C) those listed on Schedule 4.2, which unless
otherwise noted on such schedule, have been or will otherwise be prior to the Closing Date,
obtained or made, copies of which (other than those so noted as not yet obtained or made) have
been, or will be prior to the Closing Date, delivered to the Administrative Agent to the extent
requested by the Administrative Agent, and which (other than those so noted as not yet obtained or
made) on the Closing Date will be in full force and effect.




          (b) Due Execution and Delivery. From and after its delivery to the Administrative
Agent, each Loan Document has been duly executed and delivered to the other parties thereto by each
Loan Party, is the legal, valid and binding obligation of such Loan Party and is enforceable
against such Loan Party in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws
affecting creditors’ rights generally or by general equitable principles relating to
enforceability.




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          (c) Existing Subordinated Notes. The full amount of the Loans (excluding any undrawn
or uncommitted Incremental Term Loans until such time as such Incremental Term Loans are so
borrowed) may be incurred under the Existing Notes Indentures and all Obligations constitute
“Senior Debt” or “Senior Indebtedness”, as applicable, and “Designated Senior Debt” or “Designated
Senior Indebtedness”, as applicable, under and as defined in the Existing Subordinated Notes
Indentures. After giving effect to the Refinancing, no other Indebtedness of any Group Member
qualifies as “Designated Senior Debt” or “Designated Senior Indebtedness”, as applicable, under the
Existing Subordinated Notes Indentures.




          Section 4.3 Ownership of Group Member. (a) Set forth on Schedule 4.3(a) is a complete and accurate list showing, as of the
Closing Date, for each Group Member (other than the Borrower), its jurisdiction of organization,
and the number (in the case of the Loan Parties and any Excluded Foreign Subsidiary that is a first
tier
Subsidiary of any Loan Party) and percentage of the outstanding shares of each class of Stock owned
(directly or indirectly) by the applicable holder thereof. As of the Closing Date, all outstanding
Stock owned by any Group Member in any other Group Member has been validly issued, is fully paid
and non-assessable (to the extent applicable) and is owned beneficially and of record by a Group
Member free and clear of all Liens other than the security interests created by the Loan Documents
and, in the case of joint ventures, Permitted Liens. Except as set forth on Schedule
4.3(a), as of the Closing Date, there are no Stock Equivalents with respect to the Stock of any
Group Member (other than the Borrower) or any Contractual Obligations to which any Group Member
(other than the Borrower) is a party with respect to (including any restriction on) the issuance,
voting, Sale or pledge of any Stock or Stock Equivalent of any Group Member (other than the
Borrower).




          (b) Set forth on Schedule 4.3(b) is a complete and accurate list, as of the Closing Date, of
all material agreements and documents relating to the P&G Joint Venture.




          (c) None of the Inactive Subsidiaries as of the Closing Date engage in any business,
operations or activity, or hold any property, other than as permitted under Section 8.8(c).




          Section 4.4 Financial Statements. (a) Each of (i) the audited Consolidated balance sheet of the Borrower as at December 31, 2010
and the related Consolidated statements of operations, equity and comprehensive income (loss) and
cash flows of the Borrower for the Fiscal Year then ended, audited by PricewaterhouseCoopers LLP,
and (ii) subject to the absence of footnote disclosure and normal year-end audit adjustments, the
unaudited Consolidated balance sheet of the Borrower as at March 31, 2011 and the related
Consolidated statements of operations and cash flows of the Borrower for the three months then
ended, copies of each of which have been furnished to the Administrative Agent prior to the Closing
Date, fairly present in all material respects the Consolidated financial position, results of
operations and cash flows of the Borrower and its Subsidiaries as at the dates indicated and for
the periods indicated in accordance with GAAP.




          (b) On the Closing Date, except as set forth on Schedule 4.4(b), (i) no Group Member
has any material liability or other obligation (including Indebtedness, Guaranty Obligations,
contingent liabilities and liabilities for taxes, long-term leases and unusual forward or long-term
commitments) that is not reflected in the Financial Statements referred to in clause (a)
above or in the notes thereto, that has not been publicly disclosed in any SEC filing of the
Borrower, and that is prohibited by this Agreement and (ii) since the date of the unaudited
Financial Statements referenced in clause (a) above, there has been no Sale of any material




83









 







property of any Group Member and no purchase or other acquisition of any material property that has
not be disclosed to the public or to the Administrative Agent and that would have been required to
have been disclosed to the Administrative Agent under the terms of this Agreement had this
Agreement been in effect since such date.




          (c) The Initial Projections have been prepared by the Borrower in light of the past operations
of the business of the Borrower and its Subsidiaries and reflect projections for the Fiscal Years
ending in 2011 through 2017. As of the Closing Date, the Initial Projections are based upon
estimates and assumptions stated therein, all of which the Borrower believes to be reasonable and
fair in light of conditions and facts known to the Borrower as of the Closing Date and reflect the
good faith estimates by the Borrower of the future Consolidated financial
performance of the Borrower and the other information projected therein for the periods set
forth therein; provided that (i) such Initial Projections are forward looking
information which may be subject to significant uncertainties and contingencies beyond the Group
Members’ control, (ii) no assurance would be given by the Group Members that such Initial
Projections will be realized and (iii) the actual results may differ from the Initial Projections
and such differences might be material.




          Section 4.5 Material Adverse Effect. Since December 31, 2010, there have been no events, circumstances, developments or other changes
in facts that have had, or could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.




          Section 4.6 Solvency. Both before and after giving effect to (a) the Loans and Letters of Credit made or Issued on or
prior to the date this representation and warranty is made, (b) the disbursement of the proceeds of
such Loans, (c) the consummation of the Transactions (and any Permitted Stock Repurchases which are
consummated on the Closing Date) and (d) the payment and accrual of all transaction costs in
connection with the foregoing, the Borrower and its Subsidiaries taken as a group on a consolidated
basis are Solvent.




          Section 4.7 Litigation. Except as set forth in Schedule 4.7, there are no pending (or, to the knowledge of any
Group Member, threatened) actions, investigations, suits, proceedings, audits, claims, demands,
orders or disputes affecting the Borrower or any of its Subsidiaries with, by or before any
Governmental Authority other than those that cannot reasonably be expected individually or in the
aggregate, to have a Material Adverse Effect. No injunction, writ, temporary restraining order or
any order of any nature has been issued by any court or other Governmental Authority purporting to
enjoin or restrain the execution, delivery or performance of this Agreement or any other Loan
Document, or directing that the transactions provided for herein or therein not be consummated as
herein or therein provided.




          Section 4.8 Taxes. Except, in the case of each of clauses (i), (ii) and (iii), as set forth
in Schedule 4.8 or as could not reasonably be expected to have a Material Adverse Effect:
(i) all federal, state, local and foreign income and franchise and other material tax returns,
reports and statements (collectively, the “Tax Returns”) required to be filed by any Tax
Affiliate have been filed with the appropriate Governmental Authorities in all jurisdictions in
which such Tax Returns are required to be filed, all such Tax Returns are true and correct in all
material respects, and all taxes, charges and other impositions reflected therein or otherwise due
and payable have been paid prior to the date on which any Liability may be added thereto for
non-payment thereof except for those contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves are maintained on the books of the appropriate Tax
Affiliate in accordance with GAAP; (ii) no Tax Return is under audit or examination by any




84









 







Governmental Authority and no notice of such an audit or examination or any assertion of any claim
for Taxes has been given or made by any Governmental Authority; and (iii) no Tax Affiliate has
participated in a “reportable transaction” within the meaning of Treasury Regulation Section
1.6011-4(b) or has been a member of an
affiliated, combined or unitary group other than the group of which a Tax Affiliate is the common
parent.




          Section 4.9 Margin Regulations. (a) The Borrower is not engaged in the business of extending credit for the purpose of, and,
except as permitted by Section 8.5, no proceeds of any Loan or other extensions of credit
hereunder will be used for the purpose of, buying or carrying Margin Stock or extending credit to
others for the purpose of purchasing or carrying any such Margin Stock, in each case in
contravention of Regulation T, U or X of the Federal Reserve Board.




          (b) Except to the extent permitted by Section 7.13, the fair market value of all
Margin Stock owned by the Borrower and its Subsidiaries (other than Stock of the Borrower held in
treasury) does not exceed $35,000,000. At the time of making of each Loan or issuance of each
Letter of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries
taken as a whole (including all Stock of the Borrower held in treasury) will constitute Margin
Stock.




          Section 4.10 No Burdensome Obligations; No Defaults. No Group Member is a party to any Contractual Obligation, no Group Member has Constituent
Documents containing obligations, and, to the knowledge of any Group Member, there are no
applicable Requirements of Law (including all Healthcare Laws), in each case the compliance with
which could reasonably be expected to have, in the aggregate, a Material Adverse Effect. No Group
Member (and, to the knowledge of each Group Member, no other party thereto) is in default under or
with respect to any Contractual Obligation of any Group Member, other than those that could not
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.




          Section 4.11 Investment Company Act. No Group Member is an “investment company” or an “affiliated person” of, or “promoter” or
“principal underwriter” for, an “investment company”, as such terms are defined in the Investment
Company Act of 1940.




          Section 4.12 Labor Matters. (a) Except as set forth on Schedule 4.12, there are no strikes, work stoppages,
slowdowns or lockouts existing, pending (or, to the knowledge of any Group Member, threatened)
against or involving any Group Member, except, for those that could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect; (b) hours worked by and
payment made to employees of each Group Member comply with the Fair Labor Standards Act and each
other federal, state, local or foreign law applicable to such matters, except where the failures to
so comply would not constitute, in the aggregate, a Material Adverse Effect; (c) as of the Closing
Date, no Loan Party is party to or bound by any collective bargaining or similar agreement with any
union, labor organization, works council or similar representative covering any employee of any
Loan Party; (d) as of the Closing Date, no Group Member which is not Loan Party is party to or
bound by any collective bargaining or similar agreement with any union, labor organization, works
council or similar representative covering any employee of any such Group Member, except, for those
that could not reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect; (e) as of the Closing Date, there is no organizing
activity involving any Group Member pending or, to any Group Member’s knowledge, threatened by any
labor union or group of employees, except, for those that could not reasonably be expected to have,
either individually or




85









 







in the aggregate, a Material Adverse Effect; (f) as of the Closing Date, no
petition for certification or election of any such representative is existing or pending with
respect to any employee of any Group Member and no such representative has sought certification or
recognition with respect to any employee of any Group Member, except, for those that could not
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
and (g) there are no complaints or charges against any Group Member pending or, to the knowledge of
any Group Member, threatened to be filed with any Governmental Authority or arbitrator based on,
arising out of, in connection with, or otherwise relating to the employment or termination of
employment by any Group Member of any individual except for complaints or charges that, in the
aggregate, would not constitute a Material Adverse Effect.




          Section 4.13 ERISA. (a) Each Benefit Plan, and each trust thereunder, intended to qualify for tax exempt status
under Section 401 or 501 of the Code or other Requirements of Law so qualifies except where such
noncompliance would not, in the aggregate, constitute a Material Adverse Effect. Each Benefit Plan
is in compliance with applicable provisions of ERISA, the Code and other Requirements of Law,
except where such noncompliance would not, in the aggregate, constitute a Material Adverse Effect.
No Group Member or any ERISA Affiliate has engaged in any “prohibited transactions” as defined in
Section 406 of ERISA and Section 4975 of the Code, in connection with any Benefit Plan, that would
subject any Group Member to a tax on prohibited transactions imposed by Section 502(i) of ERISA or
Section 4975 of the Code that would constitute a Material Adverse Effect. On the Closing Date, no
ERISA Event has occurred in connection with which obligations and liabilities (contingent or
otherwise) remain outstanding.




          (b) (i) No Title IV Plan has any Unfunded Pension Liability that could result in a Material
Adverse Effect; (ii) there are no existing or pending (or to the knowledge of any Group Member,
threatened) claims (other than routine claims for benefits in the normal course), sanctions,
actions, lawsuits or other proceedings or investigation involving any Benefit Plan that would
result in a Material Adverse Effect; (iii) within the last five years no Title IV Plan of any Group
Member or ERISA Affiliate has been terminated, other than in a “standard termination” as that term
is used in Section 4041(b)(1) of ERISA; and (iv) no ERISA Event has occurred that, individually or
in the aggregate, could result in a Material Adverse Effect or a Lien under ERISA or Code Sections
412 or 430.




          Section 4.14 Environmental Matters. Except, in the case of each of clauses (a), (b), (c) and (d), as
set forth on Schedule 4.14 or as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (a) the operations of each Group Member are and have
been in compliance with all applicable Environmental Laws, including obtaining, maintaining and
complying with all Permits required by any applicable Environmental Law, (b) no Group Member is
party to, and no Group Member and no real property currently (or to the knowledge of any Group
Member previously) owned, leased, subleased, operated or otherwise occupied by or for any Group
Member is subject to or the subject of, any Contractual Obligation or any pending (or, to the
knowledge of any Group Member, threatened) order, action, investigation, suit, proceeding, audit,
claim, demand, dispute or notice of violation or of potential liability or similar notice under or
pursuant to any
Environmental Law, (c) no Lien in favor of any Governmental Authority securing, in whole or in
part, Environmental Liabilities has attached to any property of any Group Member and, to the
knowledge of any Group Member, no facts, circumstances or conditions exist that could reasonably be
expected to result in any such Lien attaching to any such property, and (d) no Group Member has
caused or suffered to occur a




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Release of Hazardous Materials at, to or from any real property of
any Group Member and each such real property is free of contamination by any Hazardous Materials.




          Section 4.15 Intellectual Property. Each Group Member owns or licenses or otherwise has the right to use all Intellectual Property
that is necessary for the operations of its businesses, except for any failure to so own, license
or have rights that could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. To the knowledge of each Group Member, (a) the conduct and operations of
the businesses of each Group Member does not infringe, misappropriate, violate or otherwise impair
any Intellectual Property owned by any other Person and (b) no other Person has contested any
right, title or interest of any Group Member in, or relating to, any Intellectual Property owned by
such Group Member, other than, in the case of each of clauses (a) and (b), as could
not reasonably be expected to have, either individually or in the aggregate, a Material Adverse
Effect. Except, in the case of each of clauses (x) and (y), as set forth in
Schedule 4.15 or as could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect, (x) there are no pending (or, to the knowledge of any Group
Member, threatened) actions, suits, proceedings, audits, claims, demands, orders or disputes
affecting any Group Member with respect to, and (y) no judgment or order regarding any such claim
has been rendered by any competent Governmental Authority and no settlement agreement or similar
Contractual Obligation has been entered into by any Group Member with respect to any such
infringement, misappropriation, violation or impairment.




          Section 4.16 Title; Real Property. (a) Each Group Member has good and marketable fee simple title to all owned real property and
valid leasehold interests in all leased real property, and owns all personal property, in each case
that is purported to be owned or leased by it, including those reflected on the most recent
Financial Statements delivered by the Borrower, and none of such property is subject to any Lien
except Permitted Liens.




          (b) Set forth on Schedule 4.16 is, as of the Closing Date, (i) a complete and accurate
list of all real property owned in fee simple by any Loan Party and (ii) for each such owned real
property that the Administrative Agent has requested be subject to a Mortgage or that is otherwise
material to the business of any Loan Party, each Contractual Obligation by any Loan Party, whether
contingent or otherwise, to Sell such real property.




          Section 4.17 Bank and Security Accounts. Set forth on Schedule 4.17 is, as of the Closing Date, a complete and accurate list of
all bank, deposit, securities, commodities or other accounts maintained by any Loan Party, and such
Schedule correctly identifies the name of each depository, the name in which the account is held, a
description of the purpose of the account, and the complete account number therefor.




          Section 4.18 Insurance. Set forth on Schedule 4.18 is, as of the Closing Date, a complete and accurate, in all
material respects, list of all insurance policies of any nature maintained by each Loan Party, as
well as a summary of the key business terms of each such policy such as deductibles, coverage
limits and term of policy.




          Section 4.19 Use of Proceeds. (a) All proceeds of the Initial Term Loans will be used by the Borrower to (i) finance the
Refinancing, (ii) finance any Permitted Stock Repurchases that are consummated on or after the
Closing Date in an aggregate amount not to exceed $300,000,000 (and to pay related fees, costs and
expenses), (iii) to the extent not used for the purposes described in another clause of this
Section 4.19(a), finance one or more Permitted Acquisitions after the Closing Date (and to
pay related fees, costs and expenses), (iv) pay the




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fees, costs and expenses incurred with the
Transactions and (v) provide for working capital, capital expenditures and other general corporate
purposes of the Borrower and its Subsidiaries.




          (b) The proceeds of all Delayed-Draw Term Loans will be used by the Borrower to finance
Permitted Acquisitions (and to pay related fees, costs and expenses) or, to the extent that any
proceeds of Initial Term Loans are used to finance Permitted Acquisitions (including any related
fees, costs or expenses) after the Closing Date in accordance with clause (a)(iii) above, the
proceeds of Delayed-Draw Term Loans up to a corresponding amount may be used by the Borrower to
finance Permitted Stock Repurchases (and to pay related fees, costs and expenses).




          (c) The proceeds of all Incremental Term Loans will be used by the Borrower to finance
Permitted Acquisitions, or to the extent that the proceeds of Initial Term Loans are used to
finance Permitted Acquisitions after the Closing Date in accordance with clause (a)(iii) above, the
proceeds of Incremental Term Loans up to a corresponding amount may be used by the Borrower to
finance Permitted Stock Repurchases.




          (d) All proceeds of the Revolving Loans and the Swing Loans will be used to finance Permitted
Acquisitions (and to pay related fees, costs and expenses) and for the working capital, capital
expenditures and other general corporate purposes of the Borrower and its Subsidiaries;
provided that (x) no proceeds from Revolving Loans or Swing Loans may be used for the
purposes described in Section 4.19(a) (other than clause (iii), (iv) or
(v) thereof) and (y) proceeds of the Revolving Loans drawn on the Closing Date may only be
used to repay any then-outstanding loans and other amounts outstanding under the revolving credit
facility under the Existing First Lien Credit Agreement.




          Section 4.20 Full Disclosure. The information prepared or furnished by or on behalf of any Group Member to the Administrative
Agent or any Lender in connection with any Loan Document (including the information contained in
any Financial Statement or Disclosure Document) or the consummation of any Transaction or any other
transaction contemplated therein (excluding all projections that are part of such information),
taken together with all other such information, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements contained therein, in light
of the circumstances when made, not misleading. All projections that are part of such information
(including those set forth in any Projections delivered subsequent to the Closing Date) are based
upon estimates and assumptions stated
therein believed to be reasonable and fair as of the date made in light of conditions and facts
then known and, as of such date, reflect good faith estimates of the information projected for the
periods set forth therein; provided, however, (i) the projections (including all
Projections) are forward looking statements and information which may be subject to significant
uncertainties and contingencies beyond the Group Members’ control, (ii) no assurance would be given
by the Group Members that such projections will be realized and (iii) the actual results may differ
from such projections and such differences might be material.




          Section 4.21 Patriot Act. No Group Member (and, to the knowledge of each Group Member, no joint venture or subsidiary
thereof) is in violation in any material respects of any United States Requirements of Law relating
to terrorism, sanctions or money laundering, including the United States Executive Order No. 13224
on Terrorist Financing and the Patriot Act.




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ARTICLE V

FINANCIAL COVENANTS




          The Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party)
agrees with the Lenders, the L/C Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:




          Section 5.1 Maximum Consolidated Secured Leverage Ratio. The Borrower shall not have, on the last day of any Fiscal Quarter, a Consolidated Secured
Leverage Ratio greater than 4.50:1.00.




          Section 5.2 Minimum Consolidated Interest Coverage Ratio. The Borrower shall not have, on the last day of each Fiscal Quarter set forth below, a
Consolidated Interest Coverage Ratio for the four Fiscal Quarter period ending on such day less
than the minimum ratio set forth opposite such Fiscal Quarter:




	 	 	 
	 	 	MINIMUM CONSOLIDATED
	FISCAL QUARTER ENDING	 	INTEREST COVERAGE RATIO
	September 30, 2011
	 	2.25: 1.00
	December 31, 2011
	 	2.25: 1.00
	March 31, 2012
	 	2.25: 1.00
	June 30, 2012
	 	2.25: 1.00
	September 30, 2012
	 	2.25: 1.00
	December 31, 2012
	 	2.25:1.00
	March 31, 2013
	 	2.25:1.00
	June 30, 2013 and each Fiscal Quarter thereafter
	 	2.50: 1.00






          Section 5.3 Capital Expenditures. No Group Member shall incur, or permit to be incurred, Capital Expenditures in the aggregate
during any Fiscal Year (or, in the case of the Fiscal Year ending December 31, 2011, for the period
from the Closing Date through December 31, 2011), in excess of (i) in the case of the Fiscal Year
ending December 31, 2011, 1.50% of Total Assets as of the end of Fiscal Year ending December 31,
2010, and (ii) for each Fiscal Year thereafter, 3.0% of Total Assets as of the end of the
immediately preceding Fiscal Year.




ARTICLE VI

REPORTING COVENANTS




          The Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party)
agrees with the Lenders, the L/C Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:




          Section 6.1 Financial Statements. The Borrower shall deliver to the Administrative Agent each of the following:




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          (a) Quarterly Reports. As soon as available, and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year, the Consolidated unaudited
balance sheet of the Borrower as of the close of such Fiscal Quarter and related Consolidated
statements of income and cash flow for such Fiscal Quarter and that portion of the Fiscal Year
ending as of the close of such Fiscal Quarter, setting forth in comparative form the figures for
the corresponding period in the prior Fiscal Year and the figures contained in the latest
Projections, in each case certified by a Responsible Officer of the Borrower as fairly presenting
in all material respects the Consolidated financial position, results of operations and cash flow
of the Borrower as at the dates indicated and for the periods indicated in accordance with GAAP
(subject to the absence of footnote disclosure and normal year-end audit adjustments).




          (b) Annual Reports. As soon as available, and in any event within 90 days after the
end of each Fiscal Year, the Consolidated balance sheet of the Borrower as of the end of such year
and related Consolidated statements of income, stockholders’ equity and cash flow for such Fiscal
Year, each prepared in accordance with GAAP, together with a certification by the Group Members’
Accountants that such Consolidated Financial Statements fairly present in all material respects the
Consolidated financial position, results of operations and cash flow of the Borrower as at the
dates indicated and for the periods indicated therein in accordance with GAAP without qualification
as to the scope of the audit or as to going concern and without any other similar qualification.




          (c) Compliance Certificate. Together with each delivery of any Financial Statement
pursuant to clause (a) or (b) above, a Compliance Certificate duly executed by a
Responsible Officer of the Borrower that, among other things, (i) demonstrates compliance with each
financial covenant contained in Article V that is tested at least on a quarterly basis,
(ii) if delivered together with any Financial Statement pursuant to clause (b) above, shows
in reasonable detail the calculations used in determining Excess Cash Flow, and (iii) states that
no Default or Event of Default is continuing as of the date of delivery of such Compliance
Certificate or, if a Default or an Event of Default is continuing, states the nature thereof and
the action that the Borrower proposes to take with respect thereto.




          (d) Corporate Chart. Together with delivery of any Financial Statement pursuant to
clause (b) above, each in form and substance satisfactory to the Administrative Agent, a
certificate by a Responsible Officer of the Borrower that the Corporate Chart attached thereto (or
the last Corporate Chart delivered pursuant to this clause (d)) is correct and complete as
of the date of such Compliance Certificate.




          (e) Additional Projections. As soon as available and in any event not later than 30
days after the end of each Fiscal Year, any significant revisions to, (i) the annual business plan
of the Group Members for the Fiscal Year next succeeding such Fiscal Year and (ii) a forecast
prepared by management of the Borrower for each Fiscal Quarter in such next succeeding Fiscal Year,
including in such forecast (x) a projected year-end Consolidated balance sheet, income statement
and statement of cash flows, (y) a statement of all of the material assumptions on which such
forecasts are based and (z) substantially the same type of financial information as that contained
in the Initial Projections.




          (f) Management Discussion and Analysis. To the extent not included in the Borrower’s
public filings, together with each delivery of any Financial Statement pursuant to clause
(a) or (b) above, a discussion and analysis of the financial condition and results of
operations of the Group Members for the portion of the Fiscal Year then elapsed and discussing




90









 







the
reasons for any significant variations from the Projections for such period and the figures for the
corresponding period in the previous Fiscal Year.




          (g) Intercompany Loan Balances. Together with each delivery of any Financial
Statements pursuant to clause (b) above, a summary of the outstanding balances of all
intercompany Indebtedness as of the last day of the Fiscal Year covered by such Financial
Statement, certified as complete and correct by a Responsible Officer of the Borrower as part of
the Compliance Certificate delivered in connection with such Financial Statements.




          (h) Audit Reports, Management Letters, Etc. Together with each delivery of any
Financial Statements for any Fiscal Year pursuant to clause (b) above, copies of each
management letter, audit report or similar letter or report received by any Group Member from any
independent registered certified public accountant (including the Group Members’ Accountants) in
connection with such Financial Statements or any audit thereof, each certified to be complete and
correct copies by a Responsible Officer of the Borrower as part of the Compliance Certificate
delivered in connection with such Financial Statements.




          (i) Insurance. Together with each delivery of any Financial Statements for any Fiscal
Year pursuant to clause (b) above, each in form and substance satisfactory to the
Administrative Agent and certified as complete and correct by a Responsible Officer of the Borrower
as part of the Compliance Certificate delivered in connection with such Financial Statements, a
summary of all material insurance coverage maintained as of the date thereof by any Group Member,
together with such other related documents and information as the Administrative Agent may
reasonably require.




          (j) Correspondence with Holders of the Subordinated Debt. Promptly following the
delivery thereof to the holders of the Subordinated Debt, a copy of all correspondence and reports
sent by the Borrower to the holders of the Subordinated Debt.




          (k) Permitted Stock Repurchases. Together with each delivery of any Financial
Statements pursuant to clauses (a) and (b) above, a summary of all Permitted Stock
Repurchases made during such Fiscal Quarter or Fiscal Year, as the case may be, including the
applicable repurchase dates of, and consideration paid by the Group Members for, such Permitted
Stock Repurchases, and a calculation of the aggregate consideration paid by the Group Members for
all Permitted Stock Repurchases made since the Closing Date through the end of such Fiscal Quarter
or Fiscal Year, as the case may be.




          Section 6.2 Other Events. The Borrower shall give the Administrative Agent notice of each of the following (which may be
made by telephone if promptly confirmed in writing) promptly after any Responsible Officer of any
Group Member knows or has reason to know of it: (a) any Default or Event of Default, (b) any event
(other than any event involving loss or damage to property) reasonably expected to result in a
mandatory payment of the Obligations pursuant to Section 2.8, stating the material terms
and conditions of such transaction and estimating the Net Cash Proceeds thereof, (c) the
commencement of, or any material adverse developments in, any action, investigation, suit,
proceeding, audit, claim, demand, order or dispute with, by or before any Governmental Authority
affecting any Group Member or any property of any Group Member that (i) seeks material injunctive
or similar relief against any Group Members that could reasonably be expected to have a Material
Adverse Effect, (ii) in the reasonable judgment of the Borrower, exposes any Group Member to
liability in an aggregate amount in excess of $20,000,000 or (iii) has a reasonable possibility of
being determined




91









 







adversely to any Group Member and if so adversely determined could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse Effect and (d) the
acquisition of any material real property by any Loan Party.




          Section 6.3 Copies of Notices and Reports. The Borrower shall promptly deliver to the Administrative Agent copies of each of the following:
(a) except to the extent publicly filed, all reports that the Borrower transmits to its security
holders generally, and (b) except to the extent publicly filed, all material documents that any
Group Member files with the SEC, the National Association of Securities Dealers, Inc., any
securities exchange or any Governmental Authority exercising similar functions.




          Section 6.4 Taxes. Promptly after any Responsible Officer of any Group Member obtains knowledge of it, the Borrower
shall give the Administrative Agent notice (which may be made by telephone if promptly confirmed in
writing) of the creation of any Contractual Obligation of any Tax Affiliate, or the receipt of any
written request directed to any Tax Affiliate, to make any adjustment under Section 481(a) of the
Code, by reason of a change in accounting method or otherwise, which in each of the foregoing cases
could reasonably be expected to have, either individually or in the aggregate, a Material Adverse
Effect.




          Section 6.5 Labor Matters. The Borrower shall give the Administrative Agent notice of each of the following (which may be
made by telephone if promptly confirmed in writing), promptly after, and in any event within 30
days after any Responsible Officer of any Group Member obtains knowledge of: (a) the commencement
of any material labor dispute to which any Group Member is or may become a party, including any
strikes, lockouts or other disputes relating to any of such Person’s plants and
other facilities and (b) the incurrence by any Group Member of any Worker Adjustment and Retraining
Notification Act or related or similar liability incurred with respect to the closing of any plant
or other facility of any such Person (other than, in the case of this clause (b), those
that would not, in the aggregate, have a Material Adverse Effect).




          Section 6.6 ERISA Matters. The Borrower shall give the Administrative Agent (a) on or prior to any filing by any ERISA
Affiliate of any notice of intent to terminate any Title IV Plan, a copy of such notice and (b)
promptly, and in any event within 10 days, after any Responsible Officer of any ERISA Affiliate
knows or has reason to know thereof that (i) a request for a minimum funding waiver under Section
412 of the Code has been filed with respect to any Title IV Plan or Multiemployer Plan, a notice
(which may be made by telephone if promptly confirmed in writing) describing such waiver request
and any action that any ERISA Affiliate proposes to take with respect thereto, together with a copy
of any notice filed with the PBGC or the IRS pertaining thereto or (ii) any ERISA Event, together
with a statement of the Responsible Officer setting forth the details of such ERISA Event and the
action which the ERISA Affiliates propose to take with respect thereto.




          Section 6.7 Environmental Matters. The Borrower shall provide the Administrative Agent notice of each of the following (which may
be made by telephone if promptly confirmed in writing) promptly after any Responsible Officer of
any Group Member obtains knowledge of (and, upon reasonable request of the Administrative Agent,
documents and information in connection therewith): (i)(A) unpermitted Releases, or (B) the
receipt by any Group Member of any notice of violation of or potential liability or similar notice
under, or the existence of any condition that could reasonably be expected to result in violations
of or liabilities under, any Environmental Law, or (C) the commencement of, or any material change
to, any




92









 







action, investigation, suit, proceeding, audit, claim, demand, dispute alleging a violation
of or liability under any Environmental Law, that, for each of clauses (A), (B) and
(C) above (and, in the case of clause (C), if adversely determined), in the
aggregate for each such clause, could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect, and (ii) the receipt by any Group Member of notification that
any property of any Group Member is subject to any Lien in favor of any Governmental Authority
securing, in whole or in part, Environmental Liabilities that could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.




          Section 6.8 Other Information. The Borrower shall provide the Administrative Agent with such other documents and information
with respect to the business, property, condition (financial or otherwise), legal, financial or
corporate or similar affairs or operations (including tax and environmental matters) of any Group
Member as the Administrative Agent or any Lender through the Administrative Agent may from time to
time reasonably request.




          Section 6.9 Delivery of Information to Lenders. The Administrative Agent shall provide to each Lender copies of all documents and information
delivered by the Borrower to the Administrative Agent pursuant to this Article VI upon
delivery
of such documents and information to the Administrative Agent (it being understood that the
foregoing is the obligation of the Administrative Agent and not the obligation of the Borrower).




          Section 6.10 Annual Lender Call. At the request of the Administrative Agent, the Borrower will within 10 days after the date of
the delivery (or, if later, required delivery) of the annual financial information pursuant to
Section 6.1(b), hold a conference call or teleconference, at a time selected by the
Borrower and reasonably acceptable to the Administrative Agent, with all of the Lenders that choose
to participate, to review the financial results of such Fiscal Year and the financial condition of
the Borrower and its Subsidiaries and the additional projections presented for the current Fiscal
Year of the Borrower and its Subsidiaries.




          Section 6.11 Patriot Act. Promptly following the Administrative Agent’s or any Lender’s request therefor, the Borrower
shall provide all documentation and other information that the Administrative Agent or such Lender
(through the Administrative Agent) reasonably requests in order to comply with its ongoing
obligations under the applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act.




ARTICLE VII

AFFIRMATIVE COVENANTS




          The Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party)
agrees with the Lenders, the L/C Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:




          Section 7.1 Maintenance of Corporate Existence. Each Group Member shall (a) preserve and maintain its legal existence, except in the
consummation of transactions expressly permitted by Sections 8.4 and 8.7, and (b)
preserve and maintain its rights (charter and statutory), privileges, franchises and Permits
necessary or desirable in the conduct of its business, except, in the case of this clause
(b), where the failure to do so would not, in the aggregate, have a Material Adverse Effect.




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          Section 7.2 Compliance with Laws, Etc. Each Group Member shall comply with all applicable Requirements of Law (including all
Healthcare Laws and Trade Control Laws), Contractual Obligations and Permits, except for such
failures to comply that would not, in the aggregate, have a Material Adverse Effect.




          Section 7.3 Payment of Obligations. Each Group Member shall pay or discharge before they become delinquent (a) all material claims,
taxes, assessments, charges and levies imposed by any Governmental Authority and (b) all other
lawful claims that if unpaid would, by the operation of applicable Requirements of Law, become a
Lien (other than a Lien permitted by paragraphs (a) and (d) of the definition of Customary
Permitted Liens) upon any property of any Group Member, except, in the case of each of clauses
(a) and (b), for those whose amount or validity is being contested in good faith by
proper proceedings diligently conducted and for which adequate reserves are maintained on the books
of the appropriate Group Member in accordance with GAAP.




          Section 7.4 Maintenance of Property. Each Group Member shall maintain and preserve (a) in good working order and condition all of its
property necessary in the conduct of its business and (b) all rights, permits, licenses, approvals
and privileges (including all Permits and its registered Intellectual Property) necessary, used or
useful in the conduct of its business (whether for the ownership, lease, sublease or other
operation or occupation of property or otherwise), and shall make all necessary or appropriate
filings with, and give all required notices to, Governmental Authorities, except for such failures
to maintain and preserve the items set forth in clauses (a) and (b) above that
would not, either individually or in the aggregate, have a Material Adverse Effect. Each Group
Member shall perform all obligations under any Contractual Obligation to which such Loan Party or
any of its Subsidiaries is bound, or to which it or any of its properties is subject, except where
the failure to perform would not have, either individually or in the aggregate, a Material Adverse
Effect.




          Section 7.5 Maintenance of Insurance. Each Group Member shall (a) maintain or cause to be maintained in full force and effect all
policies of insurance of any kind with respect to the property and businesses of the Group Members
(including policies of life, fire, theft, product liability, public liability, property damage,
other casualty, employee fidelity, workers’ compensation, business interruption and employee health
and welfare insurance) with financially sound and reputable insurance companies or associations (in
each case that are not Affiliates of the Borrower) of a nature and providing such coverage as is
sufficient and as is customarily carried by businesses of the size and character of the business of
the Group Members and (b) cause all such insurance relating to any property or business of any Loan
Party to name the Administrative Agent on behalf of the Secured Parties as additional insured or
loss payee, as appropriate (except in the case of director and officer liability policies, employee
fidelity policies, workers compensation policies, employee health and welfare policies, kidnap and
ransom policies, theft policies, terrorism or similar policies), and to provide that no
cancellation, material addition in amount or material change in coverage shall be effective until
after 30 days’ notice thereof to the Administrative Agent.




          Section 7.6 Keeping of Books. The Group Members shall keep proper books of record and account, in which, in all material
respects, full, true and correct entries shall be made in accordance with GAAP and all other
applicable Requirements of Law of all financial transactions and the assets and business of each
Group Member.





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          Section 7.7 Access to Books and Property. Each Group Member shall permit the Administrative Agent, the Lenders and any Related Person of
any of them, as often as reasonably requested, at any reasonable time during normal business hours
and with reasonable advance notice (except that, during the continuance of an Event of Default, no
such notice shall be required) to (a) visit and inspect the property of each Group Member and
examine and make copies of and abstracts from, the corporate (and similar), financial, operating
and other books and records of each Group Member, (b) discuss the affairs, finances and accounts of
each Group Member with any officer or director of any Group Member
and (c) communicate directly with any registered certified public accountants (including the Group
Members’ Accountants) of any Group Member. Each Group Member shall authorize their respective
registered certified public accountants (including the Group Members’ Accountants) to communicate
directly with the Administrative Agent, the Lenders and their Related Persons and to disclose to
the Administrative Agent, the Lenders and their Related Persons all financial statements and other
documents and information as they might have and the Administrative Agent or any Lender reasonably
requests with respect to any Group Member.




          Section 7.8 Environmental. Each Group Member shall comply with, and maintain its real property, whether owned, leased,
subleased or otherwise operated or occupied, in compliance with, all applicable Environmental Laws
(including by implementing any Remedial Action necessary to achieve such compliance or that is
required by orders and directives of any Governmental Authority) except for failures to comply that
would not, either individually or in the aggregate, have a Material Adverse Effect. Without
limiting the foregoing, if an Event of Default is continuing or if the Administrative Agent at any
time has a reasonable basis to believe that there exist violations of Environmental Laws by any
Group Member or that there exist any Environmental Liabilities, in each case, that would have,
either individually or in the aggregate, a Material Adverse Effect, then each Group Member shall,
promptly upon receipt of request from the Administrative Agent, cause the performance of, and allow
the Administrative Agent and its Related Persons access to such real property for the purpose of
conducting, such environmental audits and assessments, including subsurface sampling of soil and
groundwater, and cause the preparation of such reports, in each case as the Administrative Agent
may from time to time reasonably request. Such audits, assessments and reports, to the extent not
conducted by the Administrative Agent or any of its Related Persons, shall be conducted and
prepared by reputable environmental consulting firms reasonably acceptable to the Administrative
Agent and shall be in form and substance reasonably acceptable to the Administrative Agent.




          Section 7.9 Use of Proceeds. The Borrower will use the proceeds of the Loans only as provided in Section 4.19.




          Section 7.10 Additional Collateral and Guaranties. To the extent not delivered to the Administrative Agent on or before the Closing Date (including
in respect of after-acquired property and Persons that become Subsidiaries of any Loan Party after
the Closing Date) and except to the extent otherwise expressly provided under Section 7.13,
each Loan Party shall, promptly (and, with respect to any Permitted Acquisition, within 45 days
(or, in the case of clause (c) below, 90 days) of the consummation thereof or (in either case) such
longer period of time agreed to by the Administrative Agent), do each of the following, unless
otherwise agreed by the Administrative Agent:




          (a) deliver to the Administrative Agent such modifications to the terms of the Loan Documents
(or, to the extent applicable as determined by the Administrative Agent, such other documents), in
each case in form and substance reasonably satisfactory to the




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Administrative Agent and as the
Administrative Agent deems necessary or advisable in order to ensure the following:





          (i) (A) each Subsidiary of any Loan Party shall guaranty, as primary obligor and not
as surety, the payment of the Obligations of the Borrower on the terms set forth in the
Guaranty and Security Agreement; and




          (ii) each Loan Party (including any Person required to become a Guarantor pursuant to
clause (i) above) shall effectively grant to the Administrative Agent, for the
benefit of the Secured Parties, a valid and enforceable security interest in all of its
property, including all of its Stock and Stock Equivalents and other Securities, as
security for the Obligations of such Loan Party (excluding any Excluded Property, as
defined in the Guaranty and Security Agreement) on the terms set forth in the Guaranty and
Security Agreement;


provided, however, that, unless the Borrower and the Administrative Agent otherwise
agree, in no event shall, (x) any Excluded Foreign Subsidiary be required to guaranty the payment
of any Obligation, (y) the Loan Parties, individually or collectively, be required to pledge in
excess of 65% of the outstanding Voting Stock of any Excluded Foreign Subsidiary (and subject to
clause (z) hereafter) or (z) a security interest be required to be granted on any property
of any Excluded Foreign Subsidiary as security for any Obligation;




          (b) deliver to the Administrative Agent all documents representing all Stock, Stock
Equivalents, other Securities, chattel paper and instruments pledged pursuant to the documents
delivered pursuant to clause (a) above, together with undated powers or endorsements duly
executed in blank;




          (c) upon request of the Administrative Agent, deliver to it a Mortgage on any real property
owned by any Loan Party having a fair market value in excess of $15,000,000, together with all
Mortgage Supporting Documents reasonably requested by the Administrative Agent relating thereto
(or, if such real property is located in a jurisdiction outside the United States, similar
documents reasonably deemed appropriate by the Administrative Agent to obtain, to the extent
possible, the equivalent in such jurisdiction of a first-priority mortgage on such real property);




          (d) subject to the terms of the Guaranty and Security Agreement, take all other actions
necessary or advisable to ensure the validity or continuing validity of any guaranty for any
Obligation or any Lien securing any Obligation, to perfect, maintain, evidence or enforce any Lien
securing any Obligation or to ensure such Lien has the same priority as that of the Liens on
similar Collateral set forth in the Loan Documents executed on the Closing Date (or, for Collateral
located outside the United States, a similar priority reasonably acceptable to the Administrative
Agent), including (x) the filing of UCC financing statements in such jurisdictions as may be
required by the Loan Documents or applicable Requirements of Law or as the Administrative Agent may
otherwise reasonably request, and (y) with respect to the outstanding Voting Stock of any Excluded
Foreign Subsidiary required to be pledged hereunder (which shall specifically exclude Orgenics Ltd.
and Orgenics International Holdings, B.V. for so long as the terms of the Indebtedness of any such
Group Member prohibit such pledge or would give rise to an event of default thereunder), upon
request of the Administrative Agent, pledge agreements and similar documents deemed appropriate by
the Administrative Agent to obtain and perfect a security interest or the equivalent under the laws
of the jurisdiction of organization of such




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Excluded Foreign Subsidiary, in such Voting Stock;
provided that the documents required under this clause (y) shall be
required only with respect to any Excluded Foreign Subsidiary which generates gross revenues on a
consolidated basis with its Subsidiaries in any Fiscal Year of
greater than $25,000,000 (or such higher amount as may be otherwise agreed to by the
Administrative Agent);




          (e) use commercially reasonable efforts to deliver to the Administrative Agent a landlord’s
agreement or bailee letter, as applicable, from the lessor of each leased property or bailee with
respect to any warehouse, processor or converter facility or other location where Collateral with a
value in excess of $5,000,000 is stored or located, unless otherwise consented to by the
Administrative Agent, which agreement or letter shall contain a customary waiver or subordination
of all Liens or claims that the landlord or bailee may assert against the Collateral at that
location and shall otherwise be reasonably satisfactory in form and substance to Administrative
Agent; and




          (f) deliver to the Administrative Agent and the Lenders legal opinions relating to the matters
described in this Section 7.10, which opinions shall be as reasonably required by, and in
form and substance and from counsel reasonably satisfactory to, the Administrative Agent.




          Section 7.11 Deposit Accounts; Securities Accounts and Cash Collateral
Accounts. (a) Each Loan Party shall, unless otherwise consented to by the Administrative Agent and except
to the extent otherwise expressly provided under Section 7.10 or Section 7.13,
deposit all of its cash and Cash Equivalents in deposit accounts that are Controlled Deposit
Accounts or in securities accounts that are Controlled Securities Accounts; provided,
however, that (i) each Group Member may maintain zero-balance accounts that are not so
controlled for the purpose of managing local disbursements and may maintain accounts that are not
so controlled for: (A) payroll, (B) payroll taxes, (C) other employee wage and benefit payments
for the benefit of the Group Members’ salaried employees, and (D) withholding tax and other
fiduciary accounts, and (ii) the foregoing requirements shall not apply to (x) cash and Cash
Equivalents the aggregate value of which does not exceed $5,000,000 and (y) cash and Cash
Equivalents that are required under applicable foreign law to be deposited by a Group Member in a
non-controlled foreign bank account in connection with the consummation of a Permitted Acquisition
of any Person that is not a Domestic Person in advance of completing such Permitted Acquisition,
provided that if after such cash or Cash Equivalents have been deposited, such Permitted
Acquisition is terminated or not otherwise consummated for any reason, the applicable Group Member
shall promptly re-transfer such cash to a Controlled Deposit Account or Controlled Securities
Account otherwise in compliance with this Section 7.11.




          (b) The Administrative Agent shall not have any responsibility for, or bear any risk of loss
of, any investment or income of any funds in any Cash Collateral Account. From time to time after
funds are deposited in any Cash Collateral Account, the Administrative Agent may apply funds then
held in such Cash Collateral Account to the payment of Obligations in accordance with Section
2.12. No Group Member and no Person claiming on behalf of or through any Group Member shall
have any right to demand payment of any funds held in any Cash Collateral Account at any time prior
to the termination of all Commitments and the payment in full of all Obligations and, in the case
of L/C Cash Collateral Accounts, the termination of all outstanding Letters of Credit.




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          Section 7.12 Credit Rating. The Borrower shall use its commercially reasonable efforts to maintain at all times (i)
monitored public debt ratings (of any level) from S&P and Moody’s in respect of the Facilities and
(ii) a monitored public corporate rating and a monitored public corporate family rating (in each
case, of any level) from S&P and Moody’s.




          Section 7.13 Postclosing Deliveries. The Borrower shall deliver to Administrative Agent, in form and substance reasonably
satisfactory to Administrative Agent, the items (or undertake the efforts) described on
Schedule 7.13 on or before the dates specified with respect to such items and efforts or
such later dates as may be agreed to by Administrative Agent, in its sole discretion.




          Section 7.14 Margin Regulations. Except as provided in the second succeeding sentence, the Borrower shall take all actions so
that at all times the fair market value of all Margin Stock owned by the Borrower and its
Subsidiaries (other than Stock of the Borrower held in treasury) shall not exceed $35,000,000. So
long as the covenant contained in the immediately preceding sentence is complied with (and
notwithstanding any provision to the contrary in any of the Loan Documents), all Margin Stock at
any time owned by the Borrower and its Subsidiaries will not constitute Collateral and no security
interest shall be granted therein pursuant to any Loan Document. If at any time the fair market
value of all Margin Stock owned by the Borrower and its Subsidiaries (other than Stock of the
Borrower held in treasury) exceeds $35,000,000, then (x) all Margin Stock in excess of $5,000,000
in the aggregate in fair market value that is owned by the Loan Parties (other than Stock of the
Borrower held in treasury) shall be pledged, and delivered for pledge, pursuant to the Guaranty and
Security Agreement and (y) the Borrower will execute and deliver to the Lenders appropriate
completed forms (including, without limitation, Forms G-3 and U-1, as appropriate) establishing
compliance with Regulations T, U and X. If at any time any Margin Stock is required to be pledged
as a result of the provisions of the immediately preceding sentence, repayments of outstanding
Obligations shall be required, and the making of subsequent Loans and/or issuance of Letters of
Credit shall be permitted, only in compliance with the applicable provisions of Regulations T, U
and X of the Federal Reserve Board.




ARTICLE VIII

NEGATIVE COVENANTS




          The Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party)
agrees with the Lenders, the L/C Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:




          Section 8.1 Indebtedness. No Group Member shall, directly or indirectly, incur or otherwise remain liable with respect to
or responsible for, any Indebtedness except for the following:




          (a) the Obligations;




          (b) Indebtedness existing on the date hereof and set forth on Schedule 8.1(b) (such
Indebtedness described in this clause (b) being “Existing Indebtedness”), together
with any Permitted Refinancing of such Indebtedness permitted hereunder in reliance upon this
clause (b);




          (c) Indebtedness consisting of Capitalized Lease Obligations (other than with respect to a
lease entered into as part of a Sale and Leaseback Transaction) and purchase




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money Indebtedness, in
each case incurred by any Group Member to finance the acquisition, repair, improvement or
construction of fixed or capital assets (including any associated software or other general
intangibles) of such Group Member, together with any Permitted Refinancing of any Indebtedness
permitted hereunder in reliance upon this clause (c); provided, however,
that (i) the aggregate outstanding principal amount of all such Indebtedness (excluding any such
Indebtedness that is Existing Indebtedness set forth on Schedule 8.1(b)) does not exceed
$40,000,000 at any time and (ii) the principal amount of such Indebtedness does not exceed the cost
of the property so acquired or built or of such repairs or improvements financed, whether directly
or through a Permitted Refinancing, with such Indebtedness;




          (d) Capitalized Lease Obligations arising under Sale and Leaseback Transactions (and any
Permitted Refinancing thereof) permitted hereunder in reliance upon Section 8.4(b)(ii) or
Section 8.4(g);




          (e) intercompany loans owing to any Group Member or any Subsidiary of any Group Member and
constituting Permitted Investments of such Group Member;




          (f) obligations under Hedging Agreements entered into for the sole purpose of hedging in the
normal course of business;




          (g) Guaranty Obligations of (i) any Loan Party with respect to Indebtedness permitted
hereunder of (x) any other Loan Party and (y) subject to the limitations set forth in Section
8.3 (including the final paragraph thereof), any Group Member that is not a Loan Party and (ii)
any Group Member that is not a Loan Party with respect to Indebtedness permitted hereunder of any
Group Member;




          (h) unsecured Indebtedness of the Borrower owing under the Existing Notes pursuant to each of
the respective Existing Notes Indentures and any Permitted Refinancing of any such Indebtedness
permitted hereunder in reliance upon this clause (h);




          (i) Permitted Acquisition Debt and any Permitted Refinancing of any such Indebtedness
permitted hereunder in reliance upon this clause (i);




          (j) any unsecured Indebtedness of any Group Member; provided, however, that
the aggregate outstanding principal amount of all such unsecured Indebtedness (excluding any such
Indebtedness that is Existing Indebtedness set forth on Schedule 8.1(b)) shall not exceed
$50,000,000 at any time;




          (k) any Indebtedness of any Group Member that is not a Loan Party provided,
however, that the aggregate outstanding principal amount of all such Indebtedness
(excluding any such Indebtedness that is Existing Indebtedness set forth on Schedule
8.1(b)) shall not exceed $50,000,000 at any time;




          (l) Indebtedness permitted under Section 8.2(e) (excluding any such Indebtedness that
is Existing Indebtedness set forth on Schedule 8.1(b);




          (m) Guaranty Obligations under or with respect to the P&G Holdings Guaranty, P&G JV Capital
Call Obligations or otherwise under the P&G JV Agreements;




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          (n) Permitted Additional Debt and any Permitted Refinancings of any such Indebtedness
permitted hereunder in reliance upon this clause (n); and




          (o) Indebtedness incurred by any Group Member constituting reimbursement obligations with
respect to letters of credit issued on behalf of a Group Member in the ordinary course of business;
provided, however, that the aggregate outstanding principal amount of all such
Indebtedness shall not exceed $15,000,000 at any time.




          Section 8.2 Liens. No Group Member shall incur, maintain or otherwise suffer to exist any Lien upon or with respect
to any of its property, whether now owned or hereafter acquired, except for the following:




          (a) Liens created pursuant to any Loan Document;




          (b) Customary Permitted Liens of Group Members;




          (c) Liens existing on the date hereof and set forth on Schedule 8.2;




          (d) Liens on the property of any Group Member securing Indebtedness permitted hereunder in
reliance upon Section 8.1(c); provided, however, that (i) such Liens exist
prior to the acquisition of, or attach substantially simultaneously with, or within 120 days after,
the acquisition, repair, improvement or construction of, such property financed, whether directly
or through a Permitted Refinancing, by such Indebtedness and (ii) such Liens do not extend to any
property of any Group Member other than the property (and proceeds thereof) acquired or built, or
the improvements or repairs, financed, whether directly or through a Permitted Refinancing, by such
Indebtedness;




          (e) Liens on any property of any Loan Party securing any of their Indebtedness or their other
liabilities; provided, however, that the aggregate outstanding principal amount of
all such Indebtedness and other liabilities shall not exceed $20,000,000 at any time;




          (f) Liens on the property of any Group Member that is not a Loan Party securing Indebtedness
permitted hereunder in reliance upon Section 8.1(k);




          (g) Liens on the property of any Loan Party securing Indebtedness incurred under any Permitted
Additional Debt Documents (including the documents relating to any Permitted Refinancing thereof)
in reliance upon Section 8.1(n), so long as (x) the holders of the respective Indebtedness
(or the respective agent or trustee on their behalf) have entered into an intercreditor agreement
in form and substance reasonably satisfactory to the Administrative Agent, and (y) such Liens are
at all times subject to the terms and provisions of the intercreditor agreement referred to in
preceding clause (x);




          (h) Liens on assets acquired in any Permitted Acquisition securing Permitted Acquisition Debt
assumed in connection with such Permitted Acquisition; provided that such Lien was
not created in contemplation of such Permitted Acquisition and does not extend to or cover any
other assets or property (other than the proceeds or products thereof);




          (i) Liens on the property of any Group Member subject to a Sale and Leaseback Transaction
permitted under Section 8.4(b)(ii) or (g) securing Indebtedness permitted
hereunder in reliance upon Section 8.1(d); provided, however, that
such Liens do not extend to




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any property of any Group Member other than the property (and proceeds
thereof) subject to such Sale and Leaseback Transaction;




          (j) Liens on the property of any Group Member securing the Permitted Refinancing of any
Indebtedness secured by any Lien on such property permitted hereunder in reliance upon clause
(c), (d), (h) or (i) above or this clause (j) without any
increase in the property subject to such Liens; and




          (k) Liens on any deposits of cash or Cash Equivalents of any Group Member securing
Indebtedness permitted hereunder in reliance upon Section 8.1(o), in an aggregate amount
not exceeding $15,750,000 (or, if less, 105% of the amount of any such Indebtedness so incurred).




          Section 8.3 Investments. No Group Member shall make or maintain, directly or indirectly, any Investment except for the
following:




          (a) Investments set forth on Schedule 8.3 and Investments set forth on Schedule
4.3(a);




          (b) Investments in cash and Cash Equivalents;




          (c) (i) endorsements for collection or deposit in the ordinary course of business consistent
with past practice, (ii) extensions of trade credit arising or acquired in the ordinary course of
business and (iii) Investments received in settlements in the ordinary course of business of such
extensions of trade credit;




          (d) Investments made as part of a Permitted Acquisition;




          (e) Investments by (i) any Loan Party in any other Loan Party, (ii) any Group Member that is
not a Loan Party in any Group Member or in any joint venture, and (iii) any Loan Party in any Group
Member that is not a Loan Party or in any joint venture; provided, however, that
any Investment consisting of loans or advances to any Loan Party pursuant to clause (ii)
above shall be subordinated in full to the payment of the Obligations of such Loan Party on terms
and conditions satisfactory to the Administrative Agent;




          (f) loans or advances to employees of the Borrower or any of its Subsidiaries to finance
travel, entertainment and relocation expenses and other ordinary business purposes in the ordinary
course of business; provided, however, that the aggregate outstanding principal
amount of all loans and advances permitted pursuant to this clause (f) shall not exceed
$5,000,000 at any time;




          (g) pledges and deposits made by a Group Member to the extent permitted under Section
8.2(b);




          (h) Hedging Agreements entered into by a Loan Party or any of its Subsidiaries to the extent
permitted under Section 8.1(f);




          (i) Guaranty Obligations to the extent permitted under Section 8.1;





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          (j) payments required under the P&G JV Capital Call Obligations to the P&G JV Companies in
accordance with the P&G JV Agreements, in an amount not to exceed $10,000,000 for any individual
capital call at any time or $20,000,000 in the aggregate for all such capital calls during any
Fiscal Year; provided that no Default or Event of Default exists or will result
from the making of any such payment and, after giving effect to such payment, the Loan Parties
shall have unused Revolving Credit Commitments and available cash and Cash Equivalents on deposit
to a Cash Collateral Account, a Controlled Deposit Account or a Controlled Securities Account of at
least $150,000,000 in the aggregate;




          (k) any Investment by the Borrower or any of its Subsidiaries; provided,
however, that the aggregate outstanding amount of all such Investments shall not exceed
$350,000,000 at any time; and




          (l) any Restricted Payment permitted pursuant to Section 8.5.




          Notwithstanding the foregoing, the sum, without duplication, of (x) the fair market value of
all Permitted Acquisitions (or portions thereof) and (y) the aggregate net amount of other
Investments (or portions thereof) (which in the case of Investments that are intercompany loans
shall mean the outstanding balance thereof), in each case, made or acquired after the Closing Date
(excluding, in each case, any Excluded Investments, as defined below) in, to or for the benefit of,
or by, any Person that is not, or does not become after giving effect to such Permitted Acquisition
or other Investment, a Loan Party (including (subject to the foregoing) the amount of any Permitted
Acquisition Consideration (or portion thereof) payable in respect of any Proposed Acquisition
Target which will not constitute a Loan Party after giving effect to the applicable Permitted
Acquisition as reasonably determined by Administrative Agent) shall not exceed 15% of Total Assets
in the aggregate after the Closing Date. For purposes of any determination under the immediately
preceding sentence, (i) the fair market value of any Permitted Acquisition or amount of any other
Investment shall at all times be the original fair market value or amount thereof at the time of
the making thereof (or, in the case of any Investment that is an intercompany loan, the outstanding
balance thereof), and (ii) no decrease in Total Assets following the time of the making of any
Permitted Acquisition or Investment shall apply to such Permitted Acquisition or Investment or any
previously made Permitted Acquisition or Investment. As used herein “Excluded Investments”
means collectively (i) Permitted Acquisitions and other Investments (or portions thereof) to the
extent funded or made with the Net Cash Proceeds of (x) the issuance of Stock or Stock Equivalents
of the Borrower (other than Disqualified Stock) or (y) the issuance of Permitted Acquisition Debt
or Permitted Additional Debt that is, in each case, Subordinated Debt, (ii) Permitted Acquisition
Consideration payable in (x) Stock or Stock Equivalents of the Borrower (other than Disqualified
Stock) or (y) Permitted Acquisition Debt or Permitted Additional Debt that is, in each case,
Subordinated Debt, (iii) Investments by a Group Member which is not a Loan Party in any other
Person and (iv) Investments permitted under Section 8.3(j) above.




          Section 8.4 Asset Sales and Stock Issuances. No Group Member shall Sell any of its property (other than cash) or issue shares of its own
Stock, except for the following:




          (a) (i) in each case to the extent entered into in the ordinary course of business for fair
market value, (A) Sales of Cash Equivalents or inventory, and (B) Sales of property that has become
obsolete or worn out or is no longer used by or useful to the Group Members, (ii) non-exclusive
licenses of Intellectual Property in the ordinary course of its




102









 







business, and (iii) Sales of
property to participants in clinical trials or in connection with research projects, in each case
in the ordinary course of business and in accordance with past practices;




          (b) (i) a true lease or sublease of real property in the ordinary course of business not
constituting Indebtedness and not entered into as part of a Sale and Leaseback Transaction and (ii)
a Sale of property pursuant to a Sale and Leaseback Transaction; provided, however,
that the aggregate fair market value (measured at the time of the applicable Sale) of all property
covered by any outstanding Sale and Leaseback Transaction at any time shall not exceed $40,000,000;




          (c) (i) any Sale of any property (other than their own Stock or Stock Equivalents) by any
Group Member to any other Group Member to the extent any resulting Investment constitutes a
Permitted Investment, (ii) any Restricted Payment by any Group Member permitted pursuant to
Section 8.5, (iii) any distribution by the Borrower of the proceeds of Restricted Payments
from any other Group Member to the extent permitted in Section 8.5, and (iv) any Permitted
Investment;




          (d) (i) any Sale or issuance by the Borrower of its own Stock or Stock Equivalents, (ii) any
Sale or issuance by any directly-owned Subsidiary of the Borrower of its own Stock to the Borrower,
(iii) any Sale or issuance by any Subsidiary of the Borrower of its own Stock to any Loan Party,
(iv) any Sale or issuance by any Subsidiary of the Borrower which is not a Loan Party of its own
Stock to any Subsidiary of the Borrower which is not a Loan Party and (v) to the extent necessary
to satisfy any Requirement of Law in the jurisdiction of incorporation of any Subsidiary of the
Borrower, any Sale or issuance by such Subsidiary of its own Stock constituting directors’
qualifying shares or nominal holdings;




          (e) as long as no Default or Event of Default is continuing or would result therefrom, any
Sale of property (other than as part of a Sale and Leaseback Transaction) of, or Sale or issuance
of its own Stock or Stock Equivalents by, any Group Member (other than the Borrower) for fair
market value payable in cash upon such sale; provided, however, that the aggregate
consideration received for all such Sales made after the Closing Date shall not at any time exceed
5% of Total Assets (and for purposes of the foregoing determination, no decrease in Total Assets
following the time of any Sale shall apply to such Sale or any previous Sale);




          (f) as long as no Default or Event of Default is continuing or would result therefrom, (i) any
Sale of property to the P&G Joint Venture required under P&G JV Agreements or (ii) any Sale of the
Group Members’ equity interests in the P&G Joint Venture pursuant to the P&G Call Option;




          (g) as long as no Default or Event of Default is continuing or would result therefrom, any
Sale of real property (including as part of a Sale and Leaseback Transaction) for fair market value
payable in cash upon such sale; provided, however, that the aggregate consideration
received after the Closing Date for all such Sales shall not exceed $200,000,000; and




          (h) so long as no Default or Event of Default is continuing or would result therefrom, to the
extent necessary to satisfy any Requirement of Law in any applicable jurisdiction in connection
with a Permitted Acquisition, any Sale of assets so long as (w) such assets are sold, transferred
or disposed of on or prior to the date required by such Requirement of Law, (x) the Borrower or its
respective Subsidiary receives at least fair market value (as




103









 







determined in good faith by the
Borrower) for such Sale, (y) the aggregate amount of the gross proceeds from the sale of such
assets shall not exceed 20% of the consolidated fair market value (as determined in good faith by
the Borrower) of the respective Proposed Acquisition Target and (z) at least 75% of the
consideration received by the Borrower or such Subsidiary shall be in the form of cash or Cash
Equivalents and shall paid at the time of closing of such Sale.




          Section 8.5 Restricted Payments. No Group Member shall directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Payment except for the following:




          (a) (i) Restricted Payments (A) by any Loan Party (other than the Borrower) to any other Loan
Party and (B) by any Group Member that is not a Loan Party to any Group Member and (ii) dividends
and distributions by any Subsidiary of the Borrower that is not a Wholly Owned Subsidiary to any
holder of its Stock, to the extent made to all such holders ratably according to their ownership
interests in such Stock;




          (b) dividends and distributions declared and paid on Stock or Stock Equivalents of any Group
Member ratably to the holders thereof and payable only in Stock that is not Disqualified Stock of
such Group Member (and cash payments in lieu of the issuance of fractional shares in connection
therewith);




          (c) the redemption, purchase or other acquisition or retirement for value by the Borrower of
its common Stock (or Stock Equivalents with respect to its common Stock) (A) from any present or
former employee, director or officer (or the assigns, estate, heirs or current or former spouses
thereof) of any Group Member upon the death, disability or termination of employment of such
employee, director or officer; provided, however, that the amount of such cash
payments paid in any Fiscal Year shall not exceed $15,000,000 in the aggregate or (B) from any
other Person; provided, however, that the amount of such cash payments paid in any
Fiscal Year in reliance upon this clause (B) shall not exceed $15,000,000 in the aggregate,
provided, further however, that no action that would otherwise be permitted
hereunder in reliance upon this clause (c) shall be permitted if a Default or an Event of
Default is then continuing or would result therefrom;




          (d) (i) conversion, exchange or exercise of Stock or Stock Equivalents of the Borrower or
convertible Indebtedness (including the Existing 2016 Subordinated Convertible Notes) into or for
Stock or Stock Equivalents of the Borrower (other than Disqualified Stock) (and cash payments in
lieu of the issuance of fractional shares in connection therewith) and (ii) any payment,
redemption, purchase, defeasance or other satisfaction (or setting apart any property for any such
purpose) in respect of (including Permitted Refinancings of) convertible Indebtedness not
prohibited by Section 8.6 or any subordination provisions with respect thereto;




          (e) (i) so long as (x) no Default or Event of Default exists at the time of payment thereof or
would result therefrom and (y) the Borrower is in compliance on a Pro Forma Basis with the
financial covenants set forth in Article V, Permitted Stock Repurchases and (ii)
any retirement, termination, defeasance or cancellation of any Stock or Stock Equivalents of
any Loan Party held in its treasury so long as no cash payment is made in respect thereof;




          (f) so long as (x) no Default or Event of Default exists at the time of payment thereof or
would result therefrom and (y) the Borrower is in compliance on a Pro Forma Basis with the
financial covenants set forth in Article V, payment by the Borrower of cash




104









 







dividends on
the Borrower’s common Stock or Preferred Stock to the holders thereof; provided,
however, that the aggregate amount of all cash dividends paid in any Fiscal Year in
reliance upon this clause (f) shall not exceed $25,000,000; and




          (g) the Borrower may make scheduled interest payments on its Junior Indebtedness in accordance
with the terms thereof and may make other payments in respect thereof to the extent not prohibited
by Section 8.6, in each case to the extent that such Junior Indebtedness constitutes Stock
Equivalents of the Borrower and any such payment in respect thereof is not otherwise prohibited by,
or violates the terms of, any subordination provisions of such Junior Indebtedness.




          Section 8.6 Payments on Junior Indebtedness. No Group Member shall (x) prepay, purchase, redeem, repurchase, defease or otherwise satisfy, in
each case prior to any scheduled maturity or amortization thereof, any Junior Indebtedness or set
apart any property for such purpose, whether directly or indirectly and whether to a sinking fund,
a similar fund or otherwise, or (y) make any payment in violation of any subordination terms of any
Subordinated Debt; provided, however, that each Group Member may, to the extent
otherwise permitted by the Loan Documents, do each of the following:




          (a) prepay, purchase, redeem, repurchase, defease or otherwise satisfy prior to any scheduled
maturity or amortization thereof (or set apart any property for such purpose), or otherwise repay
at any time and from time to time (each a “Restricted Debt Payment”), up to $400,000,000 in
aggregate principal amount outstanding under the Existing Senior Notes, Existing 2016 Subordinated
Notes and/or Existing 2016 Subordinated Convertible Notes, together with any applicable redemption,
prepayment, make-whole or other similar premiums payable in connection with any such Restricted
Debt Payment, in each case in accordance with the terms of the Existing Notes Documents relating
thereto (or otherwise (x) defease or satisfy and discharge principal amounts outstanding thereunder
in accordance with the respective terms of the applicable Existing Notes Documents or (y) deposit
cash as security for the benefit of the Secured Parties, in either case in accordance with the
applicable Maturity Date definition contained herein) so long as (i) the Consolidated Secured
Leverage Ratio at such time (both before and after giving effect to (x) such Restricted Debt
Payment, (y) such defeasance or satisfaction and discharge in accordance with the respective terms
of the applicable Existing Notes Documents or (z) such deposit of cash as security for the benefit
of the Secured Parties) is less than 2.50:1.00, (ii) both immediately before and immediately after
giving effect to (x) such Restricted Debt Payment, (y) such defeasance or satisfaction and
discharge in accordance with the respective terms of the applicable Existing Notes Documents or (z)
such deposit of cash as security for the benefit of the Secured Parties, the Borrower shall have
Revolver Availability of at least $150,000,000 in the aggregate and (iii) as of the date of (x)
such Restricted Debt Payment, (y) such defeasance or satisfaction and discharge in accordance with
the respective terms of the applicable Existing Notes Documents or (z) such deposit of cash as
security for the benefit of the Secured Parties), and after giving effect thereto on such date, no
Default or Event of Default shall be continuing;




          (b) prepay, purchase, redeem, repurchase, defease or otherwise satisfy, acquire or retire
Junior Indebtedness by delivery of or conversion into or exchange for, or, so long as no Default or
Event of Default then exists or would result therefrom, out of the proceeds of a substantially
concurrent issuance or sale of, Stock or Stock Equivalents of the Borrower (other than Disqualified
Stock and other than Stock or Stock Equivalents issued or sold to a Subsidiary) (including cash
payments in lieu of the issuance of fractional shares in connection therewith);




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          (c) so long as no Default or Event of Default then exists or would result therefrom, refinance
such Junior Indebtedness with the proceeds of a Permitted Refinancing in respect thereof or an
issuance of Permitted Additional Debt, in each case in accordance with, and as permitted by the
terms of Section 8.1;




          (d) so long as no Default or Event of Default then exists or would result therefrom, the
Borrower and its Subsidiaries may prepay, purchase, redeem, repurchase, defease or otherwise
satisfy prior to any scheduled maturity or amortization thereof any Permitted Acquisition Debt
under clause (i) of the definition thereof (including any Permitted Refinancing thereof); and




          (e) make regularly scheduled interest and amortization payments only as and when due (to the
extent that such payments are not prohibited by or in violation of any applicable subordination
terms thereof).




          Section 8.7 Fundamental Changes. No Group Member shall (a) merge, consolidate, dissolve or amalgamate with any Person, (b)
acquire all or substantially all of the Stock or Stock Equivalents of any Person or (c) acquire all
or substantially all of the assets of any Person or all or substantially all of the assets
constituting any line of business, division, branch, operating division or other unit operation of
any Person, in each case except for the following: (i) to consummate any Permitted Acquisition,
(ii) to consummate any Investment permitted under Section 8.3(k), (iii) any Sale permitted
hereunder, (iv) the dissolution of the Inactive Subsidiaries, (v) the dissolution of Subsidiaries
of the Borrower that are Wholly-Owned Subsidiaries so long as (x) the assets of such Wholly-Owned
Subsidiary are distributed or transferred solely to its direct parent company which is the Borrower
or a Wholly-Owned Subsidiary of the Borrower and (y) in the case of a dissolution of a Wholly-Owned
Subsidiary that is a Loan Party, such direct parent company also shall be a Loan Party, (vi) the
dissolution of Subsidiaries of the Borrower that are not Loan Parties so long as the assets of such
Subsidiary are distributed or transferred solely to its equity holders ratably according to their
ownership interests in such Subsidiary, (vii) the merger, consolidation or amalgamation of any
Subsidiary of the Borrower with or into the Borrower or any other Subsidiary of the Borrower and
(viii) the merger, consolidation or amalgamation of any Group Member (other than the Borrower) for
the sole purpose, and with the sole material effect, of changing its State of organization within
the United States; provided, however, that (A) in the case of any merger,
consolidation or amalgamation involving the Borrower, the Borrower shall be the surviving Person
and (B) in the case of any merger, consolidation or amalgamation involving any other Loan Party, a
Loan Party shall be the surviving corporation and all actions required to maintain the perfection
of the Lien of the Administrative Agent on the Stock or property of such Loan Party shall have been
made.




          Section 8.8 Change in Nature of Business. (a) No Group Member shall carry on any business, operations or activities (whether directly,
through a joint venture, in connection with a Permitted Acquisition or otherwise) substantially
different from those carried on by the Borrower and its Subsidiaries at the Closing Date and
business, operations and activities reasonably related thereto.




          (b) SPDH, Inc. shall not engage in any business, operations or activity, or hold any property
or have any assets or incur any Indebtedness or Guaranty Obligations other than, without
duplication (i) owning the Stock of US CD LLC owned by it on the date hereof, (ii) the entering
into, and the performance of obligations under the P&G JV Agreements to which it is a party, (iii)
making investments, contributions or distributions to US CD LLC to the extent




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permitted under
Section 8.3(j), (iv) paying taxes and making distributions or dividends to the Borrower,
(v) engaging in activities incidental to (A) the maintenance of its corporate existence in
compliance with applicable law and (B) legal, tax and accounting matters in connection with any of
the foregoing activities, (vi) as necessary to consummate the transactions contemplated by the Loan
Documents, (vii) holding directors’ and shareholders’ meetings, preparing corporate and similar
records and other activities required to maintain its separate corporate or other legal structure,
(viii) defending or otherwise taking action deemed appropriate by SPDH, Inc. with respect to any
liabilities of SPDH, Inc., including any litigation, action or proceeding, including as set forth
in Schedule 4.7, and (ix) such other business, operations and activities consented to by
the Administrative Agent.




          (c) None of the Inactive Subsidiaries shall engage in any material business, operations or
activity, or hold any material amount of property, other than the following, (i) paying taxes and
dividends permitted hereunder, (ii) holding directors’ and shareholders’ meetings, preparing
corporate and similar records and other activities required to maintain its separate corporate or
other legal structure, (iii) preparing reports to, and preparing and making notices to and filings
with, Governmental Authorities and to its holders of Stock, (iv) defending or otherwise taking
action deemed appropriate by such Inactive Subsidiary or any Group Member with respect to any
liabilities of such Inactive Subsidiary, including any litigation, action or proceeding, including
as set forth in Schedule 4.7, and (v) such other business, operations and activities
consented to by the Administrative Agent; provided that nothing herein shall prohibit any
Inactive Subsidiary from incurring or suffering to exist any Indebtedness or other liabilities or
obligations permitted to be incurred by any other Loan Party under this Agreement so long as such
Inactive Subsidiary remains a Guarantor under the Loan Documents.




          Section 8.9 Transactions with Affiliates. No Group Member shall, except as otherwise expressly permitted herein or set forth on
Schedule 8.9, enter into any other transaction directly or indirectly with, or for the
benefit of, any Affiliate of the Borrower that is not a Loan Party (including Guaranty Obligations
with respect to any obligation of any such Affiliate), except for (a) transactions in the ordinary
course of business on a basis no less favorable to such Group Member as would be obtained in a
comparable arm’s length transaction with a Person not an Affiliate of the Borrower, (b) Restricted
Payments, the proceeds of which, if received by the Borrower, are used as permitted by Section
8.5, (c) reasonable salaries and other reasonable director or employee compensation to officers
and directors of any Group Member, (d)(i) any transaction with a P&G JV Company or any Subsidiary
or member thereof pursuant to the P&G JV Agreements or (ii) other transactions with a P&G JV
Company or any Subsidiary or member thereof for the manufacturing, packaging, supply or
distribution of products or materials, or the provision of other administrative or operational
services (whether on a transitional or ongoing basis), solely with respect to the
consumer diagnostic business, so long as, with respect to this clause (ii), the Group
Members’ charges for manufacturing such products is on a “cost-plus” basis, (e) any intercompany
transaction among or between Group Members which are not Loan Parties, (f) subject to the
limitations in Section 8.3 (including the final paragraph thereof), any Guaranty
Obligations by a Loan Party of any obligations of a Group Member that is not a Loan Party which is
incurred in the ordinary course of business of such non-Loan Party and (g) any Group Member that is
not a Loan Party may issue to any Loan Party any note evidencing an obligation of such non-Loan
Party owing to such Loan Party.




          Section 8.10 Third-Party Restrictions on Indebtedness, Liens, Investments or
Restricted Payments. No Group Member shall incur or otherwise suffer to exist or become




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effective or remain liable on
or responsible for any Contractual Obligation limiting the ability of (a) any Subsidiary of the
Borrower to make Restricted Payments to, or Investments in, or repay Indebtedness or otherwise Sell
property to, any Group Member or (b) any Group Member to incur or suffer to exist any Lien upon any
property of any Group Member, whether now owned or hereafter acquired, securing any of its
Obligations (including any “equal and ratable” clause and any similar Contractual Obligation
requiring, when a Lien is granted on any property, another Lien to be granted on such property or
any other property), except, for each of clauses (a) and (b) above, (x) pursuant to
the Loan Documents and (y) limitations on Liens (other than those securing any Obligation) on any
property whose acquisition, repair, improvement or construction is financed by purchase money
Indebtedness, Capitalized Lease Obligations or Permitted Refinancings permitted hereunder in
reliance upon Section 8.1(b) or (c) set forth in the Contractual Obligations
governing such Indebtedness, Capitalized Lease Obligations or Permitted Refinancing or Guaranty
Obligations with respect thereto.




          Section 8.11 Modification of Certain Documents. No Group Member shall do any of the following:




          (a) waive or otherwise modify any term of, or provide any consent under, any Constituent
Document of, or otherwise change the capital structure of, any Group Member (including the terms of
any of their outstanding Stock or Stock Equivalents), in each case except for those modifications,
consents and waivers that (x) do not elect, or permit the election, to treat the Stock or Stock
Equivalents of any limited liability company (or similar entity) as certificated and (y) do not
materially adversely affect the interests of any Secured Party under the Loan Documents or in the
Collateral;




          (b) waive or otherwise modify any term of (w) any Subordinated Debt, if in any case the effect
thereof on such Subordinated Debt is to (i) increase the interest rate, (ii) change the due dates
for principal or interest, other than to extend such dates, (iii) modify any default or event of
default in any material respect, other than to delete it or make it less restrictive, (iv) add any
material covenant with respect thereto, (v) modify any subordination provision (if applicable) in
any manner adverse to the Lenders, (vi) modify any redemption or prepayment provision in any
material respect, other than to extend the dates therefor or to reduce the premiums or any other
amounts payable in connection therewith or (vii) materially increase any obligation of any Group
Member or confer additional material rights to the holder of such Indebtedness in a manner adverse
to any Group Member or any Secured Party (provided that these limitations shall not
restrict or prohibit any Permitted Refinancing of such Subordinated
Debt to the extent provided for under Section 8.1 and in compliance with the terms of
the definition of “Permitted Refinancing”), (x) any Permitted Acquisition Debt (including any
Permitted Refinancing thereof) to the extent that such Permitted Acquisition Debt (or such
Permitted Refinancing thereof) in the amended or modified form would not be permitted to be
incurred or issued at such time in accordance with Section 8.1(i) and the definition
thereof), (y) any Permitted Additional Debt or any Permitted Additional Debt Document relating
thereto (including any Permitted Refinancing thereof) to the extent that such Permitted Additional
Debt or Permitted Additional Debt Document relating thereto (or such Permitted Refinancing thereof)
in the amended or modified form would not be permitted to be incurred or issued at such time in
accordance with Section 8.1(n) and the definition thereof) or (z) any Existing Notes or any
Existing Notes Documents (including any Permitted Refinancing thereof) in a manner that shortens
the maturity date of such Indebtedness or provides for a shorter Weighted Average Life to Maturity
(provided that this clause (z) shall not restrict or prohibit any Permitted Refinancing




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of
any Existing Notes to the extent provided for under Section 8.1 and in compliance with the
terms of the definition of “Permitted Refinancing”);




          (c) amend, or enter into supplementary agreements with respect to, the P&G JV Agreements in a
manner which could reasonably be expected to have a Material Adverse Effect without the prior
written consent of Administrative Agent; provided that the Borrower shall provide
the Administrative Agent with a copy of any such material amendment or supplementary agreement; and




          (d) permit any Indebtedness (other than the Obligations) to qualify as “Designated Senior
Debt” or “Designated Senior Indebtedness”, as applicable, under each of the Existing Subordinated
Notes Indentures or permit the Obligations to cease qualifying as “Designated Senior Debt” or
“Designated Senior Indebtedness”, as applicable, under each of the Existing Subordinated Notes
Indentures.




          Section 8.12 Accounting Changes; Fiscal Year. No Group Member shall change its (a) accounting treatment or reporting practices, except as
required by GAAP or any Requirement of Law or (b) its fiscal year or its method for determining
fiscal quarters or fiscal months.




          Section 8.13 Margin Regulations. No Group Member shall use all or any portion of the proceeds of any credit extended hereunder to
purchase or carry margin stock (within the meaning of Regulation U of the Federal Reserve Board) in
contravention of Regulation U of the Federal Reserve Board.




          Section 8.14 Compliance with ERISA. No ERISA Affiliate shall cause or suffer to exist (a) any event that could result in the
imposition of a Lien with respect to any Title IV Plan or Multiemployer Plan or (b) any other ERISA
Event, that would, in the aggregate, have a Material Adverse Effect. No Group Member shall cause
or suffer to exist any event that could result in the imposition of a Lien with respect to any
Benefit Plan.




          Section 8.15 Hazardous Materials. No Group Member shall cause or suffer to exist any Release of any Hazardous Material at, to or
from any real property owned, leased, subleased or otherwise operated or occupied by any Group
Member that would violate any Environmental Law, form the basis for any Environmental Liabilities
or otherwise adversely affect the value or marketability of any real property (whether or not owned
by any Group Member), other than such violations, Environmental Liabilities and effects that would
not, in the aggregate, have a Material Adverse Effect.




ARTICLE IX

EVENTS OF DEFAULT




          Section 9.1 Definition. Each of the following shall be an Event of Default:




          (a) the Borrower shall fail to pay (i) any principal of any Loan or any L/C Reimbursement
Obligation when the same becomes due and payable or (ii) any interest on any Loan, any fee under
any Loan Document or any other Obligation (other than those set forth in clause (i) above)
and, in the case of this clause (ii), such non-payment continues for a period of 5 Business
Days after the due date therefor; or





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          (b) any representation, warranty or certification made or deemed made by or on behalf of any
Loan Party (or any Responsible Officer thereof) in any Loan Document shall prove to have been
incorrect in any material respect when made or deemed made (or in any respect to the extent
qualified by materiality or Material Adverse Effect); or




          (c) any Loan Party shall fail to comply with (i) Section 2.20(a)(ii) (Defaulting
Lenders), any provision of Article V (Financial Covenants), Section 6.1
(Financial Statements), 6.2(a) (Other Events), 7.1(a) (Maintenance of
Corporate Existence), 7.9 (Use of Proceeds), 7.13 (Postclosing Deliveries) or
Article VIII (Negative Covenants) or (ii) any other provision of any Loan Document if, in
the case of this clause (ii), such failure shall remain unremedied for 30 days after the
earlier of (A) the date on which a Responsible Officer of the Borrower becomes aware of such
failure and (B) the date on which notice thereof shall have been given to the Borrower by the
Administrative Agent or the Required Lenders; or




          (d) (i) any Group Member (other than an Immaterial Subsidiary) shall fail to make any payment
when due (after giving effect to any applicable grace or cure period) (whether due because of
scheduled maturity, required prepayment provisions, acceleration, demand or otherwise) on any
Indebtedness of any such Group Member (other than the Obligations or any Hedging Agreement) and, in
each case, such failure relates to Indebtedness having a principal amount of $25,000,000 or more,
(ii) any other event shall occur or condition shall exist under any Contractual Obligation relating
to any such Indebtedness (after giving effect to any applicable grace or cure period) if the effect
of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such
Indebtedness or (iii) any such Indebtedness shall become or be declared to be due and payable, or
be required to be prepaid, redeemed, defeased or repurchased (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; or




          (e) (i) any Group Member (other than an Immaterial Subsidiary) shall generally not pay its
debts as such debts become due, shall admit in writing its inability to pay its debts generally or
shall make a general assignment for the benefit of creditors, (ii) any proceeding
shall be instituted by or against any such Group Member seeking to adjudicate it a bankrupt or
insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, composition of it or its debts or any similar order, in each case under any Requirement of
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 custodian, receiver, trustee, conservator,
liquidating agent, liquidator, other similar official or other official with similar powers, in
each case for it or for any substantial part of its property and, in the case of any such
proceedings instituted against (but not by or with the consent of) any Group Member (other than an
Immaterial Subsidiary), either such proceedings shall remain undismissed or unstayed for a period
of 60 days or more or any action sought in such proceedings shall occur, (iii) any Group Member
(other than an Immaterial Subsidiary) shall take any corporate or similar action or any other
action to authorize any action described in clause (i) or (ii) above or (iv) the
Borrower and its Subsidiaries, taken as a group on a consolidated basis, cease to be Solvent; or




          (f) one or more judgments, orders or decrees (or other similar process) shall be rendered
against any Group Member (other than an Immaterial Subsidiary) (i)(A) in the case of money
judgments, orders and decrees, involving an aggregate amount (excluding amounts adequately covered
by insurance payable to any such Group Member, to the extent the relevant insurer has not denied
coverage therefor) in excess of $25,000,000 or (B) otherwise, that would have, either individually
or in the aggregate, a Material Adverse Effect and (ii)(A) enforcement




110









 







proceedings shall have been
commenced by any creditor upon any such judgment, order or decree or (B) such judgment, order or
decree shall not have been vacated or discharged for a period of 30 consecutive days and there
shall not be in effect (by reason of a pending appeal or otherwise) any stay of enforcement
thereof; or




          (g) except pursuant to a valid, binding and enforceable termination or release permitted under
the Loan Documents and executed by the Administrative Agent or as otherwise expressly permitted
under any Loan Document, (i) any provision of any Loan Document shall, at any time after the
delivery of such Loan Document, fail to be valid and binding on, or enforceable against, any Loan
Party party thereto in any material respect, (ii) any Loan Document purporting to grant a Lien to
secure any Obligation shall, at any time after the delivery of such Loan Document, fail to create a
valid and enforceable Lien on any Collateral purported to be covered thereby or such Lien shall
fail or cease to be a perfected Lien with the priority required in the relevant Loan Document or
(iii) any subordination provision set forth in any Existing Subordinated Notes Indenture shall, in
whole or in part, terminate or otherwise fail or cease to be valid and binding on, or enforceable
against any holder of the relevant Existing Subordinated Notes (or any trustee therefor), or any
Group Member shall state in writing that any of the events described in clause (i),
(ii) or (iii) above shall have occurred; or




          (h) there shall occur any Change of Control; or




          (i) after giving effect to the exercise of the P&G Put Option on the P&G JV Put Date, the
Borrower is not in compliance with the financial covenants set forth in Article V
(determined for this purpose on a Pro Forma Basis as if the P&G Put Option was consummated on the
valuation date of the P&G Put Option in accordance with the terms thereof and after giving effect
to consummation of the P&G Put Option and any payments in respect thereof).




          Section 9.2 Remedies. During the continuance of any Event of Default, the Administrative Agent may, and, at the
request of the Required Lenders, shall, in each case by notice to the Borrower and in addition to
any other right or remedy provided under any Loan Document or by any applicable Requirement of Law,
do each or any of the following: (a) declare all or any portion of the Commitments terminated,
whereupon the Commitments shall immediately be reduced by such portion or, in the case of a
termination in whole, shall terminate together with any obligation any Lender may have hereunder to
make any Loan and any L/C Issuer may have hereunder to Issue any Letter of Credit, (b) declare
immediately due and payable all or part of any Obligation (including any accrued but unpaid
interest thereon), whereupon the same shall become immediately due and payable, without
presentment, demand, protest or further notice or other requirements of any kind, all of which are
hereby expressly waived by the Borrower (and, to the extent provided in any other Loan Document,
other Loan Parties); provided, however, that, effective immediately upon the
occurrence of any Event of Default specified in Section 9.1(e)(ii), (x) the Commitments of
each Lender to make Loans and the commitment of each L/C Issuer to Issue Letters of Credit shall
each automatically be terminated and (y) each Obligation (including in each case any accrued all
accrued but unpaid interest thereon) shall automatically become and be due and payable, without
presentment, demand, protest or further notice or other requirement of any kind, all of which are
hereby expressly waived by the Borrower (and, to the extent provided in any other Loan Document,
any other Loan Party), or (c) take the actions described in Section 9.3, and (d) exercise
any other remedies which may be available under the Loan Documents or applicable law.





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          Section 9.3 Actions in Respect of Letters of Credit. At any time (i) upon the
Revolving Credit Termination Date, (ii) after the Revolving Credit Termination Date when the
aggregate funds on deposit in L/C Cash Collateral Accounts shall be less than 105% of the L/C
Obligations for all Letters of Credit at such time and (iii) as required by Section 2.12,
the Borrower shall pay to the Administrative Agent in immediately available funds at the
Administrative Agent’s office referred to in Section 11.11, for deposit in a L/C Cash
Collateral Account, the amount required so that, after such payment, the aggregate funds on deposit
in the L/C Cash Collateral Accounts equal or exceed 105% of the L/C Obligations for all Letters of
Credit at such time (not to exceed, in the case of clause (iii) above, the payment to be
applied pursuant to Section 2.12 to provide cash collateral for Letters of Credit).




ARTICLE X

THE ADMINISTRATIVE AGENT




          Section 10.1 Appointment and Duties. (a) Appointment of Administrative
Agent. Each Lender and each L/C Issuer hereby appoints GE Capital (together with any successor
Administrative Agent pursuant to Section 10.9) as the Administrative Agent hereunder and
authorizes the Administrative Agent to (i) execute and deliver the Loan Documents and accept
delivery thereof on its behalf from any Group Member, (ii) take such action on its behalf and
exercise all rights, powers and remedies and perform the duties as are expressly delegated to the
Administrative Agent under the Loan Documents and (iii) exercise such powers as are reasonably
incidental thereto.




          (b) Duties as Collateral and Disbursing Agent. Without limiting the generality of
clause (a) above, the Administrative Agent shall have the sole and exclusive right and
authority (to the exclusion of the Lenders and L/C Issuers), and is hereby authorized, to (i) act
as the disbursing and collecting agent for the Lenders and the L/C Issuers with respect to all
payments and collections arising in connection with the Loan Documents (including in any proceeding
described in Section 9.1(e)(ii) or any other bankruptcy, insolvency or similar proceeding),
and each Person making any payment in connection with any Loan Document to any Secured Party is
hereby authorized to make such payment to the Administrative Agent, (ii) file and prove claims and
file other documents necessary or desirable to allow the claims of the Secured Parties with respect
to any Obligation in any proceeding described in Section 9.1(e)(ii) or any other
bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf
of such Secured Party), (iii) act as collateral agent for each Secured Party for purposes of the
perfection of all Liens created by such agreements and all other purposes stated therein, (iv)
manage, supervise and otherwise deal with the Collateral, (v) take such other action as is
necessary or desirable to maintain the perfection and priority of the Liens created or purported to
be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document,
exercise all remedies given to the Administrative Agent and the other Secured Parties with respect
to the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise
and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender
that has consented in writing to such amendment, consent or waiver; provided,
however, that the Administrative Agent hereby appoints, authorizes and directs each Lender
and L/C Issuer to act as collateral sub-agent for the Administrative Agent, the Lenders and the L/C
Issuers for purposes of the perfection of all Liens with respect to the Collateral, including any
deposit account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender
or L/C Issuer, and may further authorize and direct the Lenders and the L/C Issuers to take further
actions as collateral sub-agents for purposes of enforcing such






112









 







Liens or otherwise to transfer the Collateral subject thereto to the Administrative Agent, and
each Lender and L/C Issuer hereby agrees to take such further actions to the extent, and only to
the extent, so authorized and directed.




          (c) Limited Duties. Under the Loan Documents, the Administrative Agent (i) is acting
solely on behalf of the Lenders and the L/C Issuers (except to the limited extent provided in
Section 2.14(b) with respect to the Register and in Section 11.11), with duties
that are entirely administrative in nature, notwithstanding the use of the defined term
“Administrative Agent”, the terms “agent”, “administrative agent” and “collateral agent” and
similar terms in any Loan Document to refer to the Administrative Agent, which terms are used for
title purposes only, (ii) is not assuming any obligation under any Loan Document other than as
expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender, L/C
Issuer or any other Secured Party and (iii) shall have no implied functions, responsibilities,
duties, obligations or other liabilities under any Loan Document, and each Lender and L/C Issuer
hereby waives and agrees not to assert any claim against the Administrative Agent based on the
roles, duties and legal relationships expressly disclaimed in clauses (i) through
(iii) above.




          Section 10.2 Binding Effect. Each Lender and each L/C Issuer agrees that (i) any
action taken by the Administrative Agent or the Required Lenders (or, if expressly required hereby,
a greater proportion of the Lenders) in accordance with the provisions of the Loan Documents, (ii)
any action taken by the Administrative Agent in reliance upon the instructions of Required Lenders
(or, where so required, such greater proportion) and (iii) the exercise by the Administrative Agent
or the Required Lenders (or, where so required, such greater proportion) of the powers set forth
herein or therein, together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Secured Parties.




          Section 10.3 Use of Discretion. (a) No Action without Instructions. The
Administrative Agent shall not be required to exercise any discretion or take, or to omit to take,
any action, including with respect to enforcement or collection, except any action it is required
to take or omit to take (i) under any Loan Document or (ii) pursuant to instructions from the
Required Lenders (or, where expressly required by the terms of this Agreement, a greater proportion
of the Lenders).




          (b) Right Not to Follow Certain Instructions. Notwithstanding clause (a)
above, the Administrative Agent shall not be required to take, or to omit to take, any action (i)
unless, upon demand, the Administrative Agent receives an indemnification satisfactory to it from
the Lenders (or, to the extent applicable and acceptable to the Administrative Agent, any other
Secured Party) against all Liabilities that, by reason of such action or omission, may be imposed
on, incurred by or asserted against the Administrative Agent or any Related Person thereof or (ii)
that is, in the opinion of the Administrative Agent or its counsel, contrary to any Loan Document
or applicable Requirement of Law.




          Section 10.4 Delegation of Rights and Duties. The Administrative Agent may, upon
any term or condition it specifies, delegate or exercise any of its rights, powers and remedies
under, and delegate or perform any of its duties or any other action with respect to, any Loan
Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person
(including any Secured Party). Any such Person shall benefit from this Article X to the
extent provided by the Administrative Agent.







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          Section 10.5 Reliance and Liability. (a) The Administrative Agent may, without
incurring any liability hereunder, (i) treat the payee of any Note as its holder until such Note
has been assigned in accordance with Section 11.2(e), (ii) rely on the Register to the
extent set forth in Section 2.14, (iii) consult with any of its Related Persons and,
whether or not selected by it, any other advisors, accountants and other experts (including
advisors to, and accountants and experts engaged by, any Loan Party) and (iv) rely and act upon any
document and information (including those transmitted by Electronic Transmission) and any telephone
message or conversation, in each case believed by it to be genuine and transmitted, signed or
otherwise authenticated by the appropriate parties.




          (b) None of the Administrative Agent and its Related Persons shall be liable for any action
taken or omitted to be taken by any of them under or in connection with any Loan Document, and each
Lender, each L/C Issuer and the Borrower hereby waive and shall not assert (and the Borrower shall
cause each other Loan Party to waive and agree not to assert) any right, claim or cause of action
based thereon, except to the extent of liabilities resulting from the gross negligence or willful
misconduct of the Administrative Agent or, as the case may be, such Related Person (each as
determined in a final, non-appealable judgment by a court of competent jurisdiction) in connection
with the duties expressly set forth herein. Without limiting the foregoing, the Administrative
Agent:





          (i) shall not be responsible or otherwise incur liability for any action or omission
taken in reliance upon the instructions of the Required Lenders or for the actions or
omissions of any of its Related Persons selected with reasonable care (other than
employees, officers and directors of the Administrative Agent, when acting on behalf of the
Administrative Agent);




          (ii) shall not be responsible to any Secured Party for the due execution, legality,
validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be created under or
in connection with, any Loan Document;




          (iii) makes no warranty or representation, and shall not be responsible, to any
Secured Party for any statement, document, information, representation or warranty made or
furnished by or on behalf of any Related Person or any Loan Party in connection with any
Loan Document or any transaction contemplated therein or any other document or information
with respect to any Loan Party, whether or not transmitted or (except for documents
expressly required under any Loan Document to be transmitted to the Lenders) omitted to be
transmitted by the Administrative Agent, including as to completeness, accuracy, scope or
adequacy thereof, or for the scope, nature or results of any due diligence performed by the
Administrative Agent in connection with the Loan Documents; and




          (iv) shall not have any duty to ascertain or to inquire as to the performance or
observance of any provision of any Loan Document, whether any condition set forth in any
Loan Document is satisfied or waived, as to the financial condition of any Loan Party or as
to the existence or continuation or possible occurrence or continuation of any Default or
Event of Default and shall not be deemed to have notice or knowledge of such occurrence or
continuation unless it has received a notice from the Borrower, any Lender or L/C Issuer
describing such Default or Event of Default clearly



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labeled “notice of default” (in which case the Administrative Agent shall promptly
give notice of such receipt to all Lenders);


and, for each of the items set forth in clauses (i) through (iv) above, each
Lender, L/C Issuer and the Borrower hereby waives and agrees not to assert (and the Borrower shall
cause each other Loan Party to waive and agree not to assert) any right, claim or cause of action
it might have against the Administrative Agent based thereon.




          Section 10.6 Administrative Agent Individually. The Administrative Agent and its
Affiliates may make loans and other extensions of credit to, acquire Stock and Stock Equivalents
of, engage in any kind of business with, any Loan Party or Affiliate thereof as though it were not
acting as Administrative Agent and may receive separate fees and other payments therefor. To the
extent the Administrative Agent or any of its Affiliates makes any Loan or otherwise becomes a
Lender hereunder, it shall have and may exercise the same rights and powers hereunder and shall be
subject to the same obligations and liabilities as any other Lender and the terms “Lender”,
“Revolving Credit Lender”, “Term Loan Lender”, “Majority Lender”, “Required Lender”, “Required
Revolving Credit Lender” and “Required Term Loan Lender” and any similar terms shall, except where
otherwise expressly provided in any Loan Document, include, without limitation, the Administrative
Agent or such Affiliate, as the case may be, in its individual capacity as Lender, Revolving Credit
Lender, Term Loan Lender or as one of the Majority Lenders, Required Lenders, Required Revolving
Credit Lenders or Required Term Loan Lenders respectively.




          Section 10.7 Lender Credit Decision. Each Lender and each L/C Issuer acknowledges
that it shall, independently and without reliance upon the Administrative Agent, any Lender or L/C
Issuer or any of their Related Persons or upon any document (including the Disclosure Documents)
solely or in part because such document was transmitted by the Administrative Agent or any of its
Related Persons, conduct its own independent investigation of the financial condition and affairs
of each Loan Party and make and continue to make its own credit decisions in connection with
entering into, and taking or not taking any action under, any Loan Document or with respect to any
transaction contemplated in any Loan Document, in each case based on such documents and information
as it shall deem appropriate. Except for documents expressly required by any Loan Document to be
transmitted by the Administrative Agent to the Lenders or L/C Issuers, the Administrative Agent
shall not have any duty or responsibility to provide any Lender or L/C Issuer with any credit or
other information concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party that may come
into the possession of the Administrative Agent or any of its Related Persons.




          Section 10.8 Expenses; Indemnities. (a) Each Lender agrees to reimburse the
Administrative Agent and each of its Related Persons (to the extent not reimbursed by any Loan
Party) promptly upon demand for such Lender’s Pro Rata Share with respect to the Facilities of any
costs and expenses (including fees, charges and disbursements of financial, legal and other
advisors and Other Taxes paid in the name of, or on behalf of, any Loan Party) that may be incurred
by the Administrative Agent or any of its Related Persons in connection with the preparation,
syndication, execution, delivery, administration, modification, consent, waiver or enforcement
(whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or
other proceeding or otherwise) of, or legal advice in respect of its rights or responsibilities
under, any Loan Document.







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          (b) Each Lender further agrees to indemnify the Administrative Agent and each of its Related
Persons (to the extent not reimbursed by any Loan Party) from and against such Lender’s aggregate
Pro Rata Share with respect to the Facilities of the Liabilities (including taxes, interests and
penalties imposed for not properly withholding or backup withholding on payments made to on or for
the account of any Lender) that may be imposed on, incurred by or asserted against the
Administrative Agent or any of its Related Persons in any matter relating to or arising out of, in
connection with or as a result of any Loan Document or any other act, event or transaction related,
contemplated in or attendant to any such document, or, in each case, any action taken or omitted to
be taken by the Administrative Agent or any of its Related Persons under or with respect to any of
the foregoing; provided, however, that no Lender shall be liable to the
Administrative Agent or any of its Related Persons to the extent such liability has resulted
primarily from the gross negligence or willful misconduct of the Administrative Agent or, as the
case may be, such Related Person, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order.




          Section 10.9 Resignation of Administrative Agent or L/C Issuer. (a) The
Administrative Agent may resign at any time by delivering notice of such resignation to the Lenders
and the Borrower, effective on the date set forth in such notice or, if no such date is set forth
therein, upon the date such notice shall be effective. If the Administrative Agent delivers any
such notice, the Required Lenders shall have the right to appoint a successor Administrative Agent.
If, within 30 days after the retiring Administrative Agent having given notice of resignation, no
successor Administrative Agent has been appointed by the Required Lenders and has accepted such
appointment, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent from among the Lenders. Each appointment under this clause
(a) shall be subject to the prior consent of the Borrower, which may not be unreasonably
withheld but shall not be required during the continuance of an Event of Default.




          (b) Effective immediately upon its resignation, (i) the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents, (ii) the Lenders shall assume
and perform all of the duties of the Administrative Agent until a successor Administrative Agent
shall have accepted a valid appointment hereunder, (iii) the retiring Administrative Agent and its
Related Persons shall no longer have the benefit of any provision of any Loan Document other than
with respect to any actions taken or omitted to be taken while such retiring Administrative Agent
was, or because such Administrative Agent had been, validly acting as Administrative Agent under
the Loan Documents and (iv) subject to its rights under Section 10.3, the retiring
Administrative Agent shall take such action as may be reasonably necessary to assign to the
successor Administrative Agent its rights as Administrative Agent under the Loan Documents.
Effective immediately upon its acceptance of a valid appointment as Administrative Agent, a
successor Administrative Agent shall succeed to, and become vested with, all the rights, powers,
privileges and duties of the retiring Administrative Agent under the Loan Documents.




          (c) Notwithstanding anything to the contrary contained herein, any L/C Issuer may, upon 30
days’ notice to the Borrower and the Lenders, resign as an L/C Issuer; provided
that, on or prior to the expiration of such 30-day period with respect to such resignation,
the L/C Issuer shall have identified, in consultation with the Borrower, a successor L/C Issuer
willing to accept its appointment as successor L/C Issuer. In the event of any such resignation of
an L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders willing to accept
such appointment a successor L/C Issuer hereunder; provided that, no failure by the
Borrower to






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appoint any such successor shall affect the resignation of the L/C Issuer. Upon such
resignation, the L/C Issuer shall remain an L/C Issuer and shall retain its rights and obligations
in its capacity as such (other than any obligation to Issue Letters of Credit but including the
right to receive fees or to have Lenders participate in any L/C Reimbursement Obligation thereof)
with respect to Letters of Credit issued by such L/C Issuer prior to the date of such resignation
and shall otherwise be discharged from all other duties and obligations under the Loan Documents.




          Section 10.10 Release of Collateral or Guarantors. Each Lender and L/C Issuer
hereby consents to the release and hereby directs the Administrative Agent to release (or, in the
case of clause (b)(ii) below, release or subordinate) the following:




          (a) any Subsidiary of the Borrower from its guaranty of any Obligation of any Loan Party if
all of the Securities of such Subsidiary owned by any Group Member are Sold in a Sale permitted
under the Loan Documents (including pursuant to a waiver or consent), to the extent that, after
giving effect to such Sale, such Subsidiary would not be required to guaranty any Obligations
pursuant to Section 7.10; and




          (b) any Lien held by the Administrative Agent for the benefit of any of the Secured Parties
against (i) any Collateral that is Sold by a Loan Party in a Sale permitted by the Loan Documents
(including pursuant to a valid waiver or consent), to the extent all Liens required to be granted
in such Collateral pursuant to Section 7.10 after giving effect to such Sale have been
granted, (ii) any property subject to a Lien permitted hereunder in reliance upon Section
8.2(d) or (e) and (iii) all of the Collateral and all Loan Parties, upon (A)
termination of the Commitments, (B) payment and satisfaction in full of all Loans, all L/C
Reimbursement Obligations and all other Obligations that the Administrative Agent has been notified
in writing are then due and payable by the holder of such Obligation, (C) deposit of cash
collateral with respect to all contingent Obligations (other than contingent indemnification
obligations as to which no claim has been asserted) (or, in the case of any L/C Obligation, a
back-up letter of credit has been issued), in amounts and on terms and conditions and with parties
satisfactory to the Administrative Agent and each Indemnitee that is owed such Obligations and (D)
to the extent requested by the Administrative Agent, receipt by the Secured Parties of liability
releases from the Loan Parties, each in form and substance acceptable to the Administrative Agent.



Each Lender and L/C Issuer hereby directs the Administrative Agent, and the Administrative Agent
hereby agrees, upon receipt of reasonable advance notice from the Borrower, to execute and deliver
or file such documents and to perform other actions reasonably necessary to release the guaranties
and Liens when and as directed in this Section 10.10.




          Section 10.11 Additional Secured Parties. The benefit of the provisions of the
Loan Documents directly relating to the Collateral or any Lien granted thereunder shall extend to
and be available to any Secured Party that is not a Lender or L/C Issuer as long as, by accepting
such benefits, such Secured Party agrees, as among the Administrative Agent and all other Secured
Parties, that such Secured Party is bound by (and, if requested by the Administrative Agent, shall
confirm such agreement in a writing in form and substance acceptable to the Administrative Agent)
this Article X, Section 11.8 (Right of Setoff), Section 11.9 (Sharing of
Payments) and Section 11.20 (Confidentiality) and the decisions and actions of the
Administrative Agent and the Required Lenders (or, where expressly required by the terms of this
Agreement, a greater proportion of the Lenders) to the same extent a Lender is bound;
provided, however, that, notwithstanding the foregoing, (a) such Secured Party
shall be bound by Section 10.8 only to the extent of Liabilities, costs and expenses with
respect to or otherwise






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relating to the Collateral held for the benefit of such Secured Party, in which case the obligations of such
Secured Party thereunder shall not be limited by any concept of Pro Rata Share or similar concept,
(b) except as set forth specifically herein, each of the Administrative Agent, the Lenders and the
L/C Issuers shall be entitled to act at its sole discretion, without regard to the interest of such
Secured Party, regardless of whether any Obligation to such Secured Party thereafter remains
outstanding, is deprived of the benefit of the Collateral, becomes unsecured or is otherwise
affected or put in jeopardy thereby, and without any duty or liability to such Secured Party or any
such Obligation and (c) except as set forth specifically herein, such Secured Party shall not have
any right to be notified of, consent to, direct, require or be heard with respect to, any action
taken or omitted in respect of the Collateral or under any Loan Document.




          Section 10.12 Titles. Notwithstanding anything else to the contrary in this
Agreement or any other Loan Document, no party hereto designated as a documentation agent, a
syndication agent, an arranger or a bookrunner shall have any duties or responsibilities under this
Agreement or any other Loan Document nor any fiduciary duty to any Lender, L/C Issuer or any other
Secured Party, and no implied covenants, functions, responsibilities, duties obligations or
liabilities shall be read into this Agreement or otherwise exist against any such documentation
agent, syndication agent, arranger or bookrunner, in such capacity.




ARTICLE XI

MISCELLANEOUS




          Section 11.1 Amendments, Waivers, Etc. (a) No amendment or waiver of any
provision of any Loan Document (other than the Fee Letter, the Control Agreements, the L/C
Reimbursement Agreements, the Secured Hedging Agreements and the Secured Treasury Services
Agreements and any other Loan Document executed pursuant to any of the foregoing) and no consent to
any departure by any Loan Party therefrom shall be effective unless the same shall be in writing
and signed (1) in the case of an amendment, consent or waiver to cure any ambiguity, omission,
defect or inconsistency or granting a new Lien for the benefit of the Secured Parties or extending
an existing Lien over additional property, by the Administrative Agent and the Borrower, (2) in the
case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with
the consent of the Required Lenders), (3) in the case of any amendment necessary to implement an
Incremental Term Loan Facility in accordance with Section 2.19 (including any increase in
the Applicable Margin applicable to existing Term Loans that becomes effective on the date on which
any Incremental Term Loan Amendment becomes effective), by the Borrower, each Increasing Lender,
each New Lender and the Administrative Agent and (4) in the case of any other amendment, by the
Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the
Borrower; provided, however, that no amendment, consent or waiver described in
clause (2) or (4) above shall, unless in writing and signed by each Lender (other
than, except with respect to following clauses (ii) and (iii), a Defaulting Lender) (or by the
Administrative Agent with the consent of each such Lender) (with Obligations being directly
affected in the case of following clauses (i), (ii), (iii) and (iv)), in addition to any other
Person the signature of which is otherwise required pursuant to any Loan Document, do any of the
following:





          (i) waive any condition specified in Section 3.1, except any condition
referring to any other provision of any Loan Document;




          (ii) increase the Commitment of such Lender or subject such Lender to any additional
obligation;



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          (iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the
principal amount of, the interest rate on, or any obligation of the Borrower to repay
(whether or not on a fixed date), any outstanding Loan owing to such Lender, (B) any fee or
accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit Lender,
any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not
on a fixed date) any L/C Reimbursement Obligation; provided, however, that
this clause (iii) does not apply to (x) any change to any provision increasing any
interest rate or fee during the continuance of an Event of Default or to any payment of any
such increase or (y) any modification to any financial covenant set forth in Article
V or in any definition set forth therein or principally used therein;




          (iv) waive or postpone any scheduled maturity date or other scheduled date fixed for
the payment, in whole or in part, of principal of or interest on any Loan or fee owing to
such Lender or for the reduction of such Lender’s Commitment; provided,
however, that this clause (iv) does not apply to any change to or waiver
of mandatory prepayments, including those required under Section 2.8, or to the
application of any payment, including as set forth in Section 2.12;




          (v) except as provided in Section 10.10, (x) release all or substantially all
of the Collateral, or release all or substantially all of the value of the Guaranties, (y)
consent to the assignment or transfer by the Borrower of any of its rights or obligations
under the Loan Documents, or (z) consent to the assignment or transfer by any other Loan
Party (other than the Borrower) of any of its rights or obligations under the Loan
Documents (excluding any assignment pursuant to any intercompany transactions otherwise
permitted by the terms of this Agreement);




          (vi) reduce or increase the proportion of Lenders required for the Lenders (or any
subset thereof) to take any action hereunder or change the definition of the terms
“Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or




          (vii) amend Section 10.10 (Release of Collateral or Guarantor),
Section 11.9 (Sharing of Payments) or this Section 11.1;


and provided, further, that (x)(A) any waiver of any payment applied pursuant to
Section 2.12(b) (Application of Mandatory Prepayments) to, and any modification of
the application of any such payment to, (1) the Term Loans shall require the consent of the
Required Term Loan Lenders and (2) the Revolving Loans shall require the consent of the Required
Revolving Credit Lenders, (B) any change to the definition of the term “Required Term Loan Lenders”
shall require the consent of the Term Loan Lenders, (C) any change to the definition of the term
“Required Revolving Credit Lenders” shall require the consent of the Revolving Credit Lenders, and
(D) any change to the definition of the term “Majority Lenders” shall require the consent of the
Majority Lenders of the respective Tranche affected thereby, (y) no amendment, waiver or consent
shall affect the rights or duties under any Loan Document of, or any payment to, the Administrative
Agent (or otherwise modify any provision of Article X or the application thereof), the
Swingline Lender, any L/C Issuer or any SPV that has been granted an option pursuant to Section
11.2(f) unless in writing and signed by, as the case may be, the Administrative Agent, the
Swingline Lender, such L/C Issuer or such SPV in addition to any signature otherwise required and
(z) the consent of the Borrower shall not be required to change any order of priority set forth in
Section 2.12(c) or (d). No amendment, modification or waiver of this Agreement or
any Loan Document altering the ratable treatment of Obligations arising under Secured Hedging






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Agreements or Secured Treasury Services Agreements resulting in such Obligations being junior in right of payment to principal of
the Loans or resulting in Obligations owing to any Secured Hedging Counterparty or any Secured
Treasury Services Creditor being unsecured (other than releases of Liens in accordance with the
terms hereof), in each case in a manner adverse to any Secured Hedging Counterparty or any Secured
Treasury Services Creditor, as the case may be, shall be effective without the written consent of
such Secured Hedging Counterparty or such Secured Treasury Services Creditor, as the case may be,
or, in the case of a Secured Hedging Agreement provided or arranged by the Administrative Agent or
an Affiliate thereof, the Administrative Agent. It is understood and agreed that the rights and
benefits of any Secured Hedging Counterparty or any Secured Treasury Services Creditor under the
Loan Documents consist exclusively of such Secured Hedging Counterparty’s or such Secured Treasury
Service Creditor’s rights under this Section 11.1 and the right to share in payments and
collections out of the Collateral as more fully set forth (and subject to the limitations set
forth) herein and therein and to receive payments, if any, in accordance with Section
2.12(c).




          (b) Each waiver or consent under any Loan Document shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Loan
Party shall entitle any Loan Party to any notice or demand in the same, similar or other
circumstances. No failure on the part of any Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, 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.




          Section 11.2 Assignments and Participations; Binding Effect. (a) Binding
Effect. This Agreement shall become effective when it shall have been executed by the Borrower
and the Administrative Agent and when the Administrative Agent shall have been notified by each
Lender and L/C Issuer that such Lender or L/C Issuer has executed it. Thereafter, it shall be
binding upon and inure to the benefit of, but only to the benefit of, the Borrower (except for
Article X), the Administrative Agent, each Lender and L/C Issuer and, to the extent
provided in Section 10.11, each other Indemnitee and Secured Party and, in each case, their
respective successors and permitted assigns. Except as expressly provided in any Loan Document
(including in Section 10.9), none of the Borrower, any L/C Issuer or the Administrative
Agent shall have the right to assign any rights or obligations hereunder or any interest herein.




          (b) Right to Assign. Each Lender may sell, transfer, negotiate or assign all or a
portion of its rights and obligations hereunder (including all or a portion of its Commitments and
its rights and obligations with respect to Loans and Letters of Credit) to (each an “Eligible
Assignee”): (i) any existing Lender; provided that no such sale, transfer, negotiation
or assignment may be made to any such Person that is, to the knowledge of such assigning Lender, a
Defaulting Lender, (ii) any Affiliate or Approved Fund of any existing Lender; provided
that no such sale, transfer, negotiation or assignment may be made to any such Person that is, to
the knowledge of such assigning Lender, a Defaulting Lender, or (iii) any other Person (other than
the Borrower or any of its Subsidiaries except as provided in Section 2.21) acceptable
(which acceptance shall not be unreasonably withheld or delayed) to (x) the Administrative Agent,
and (y) in the case of any sale, transfer, negotiation or assignment of Revolving Credit
Commitments (and related Obligations) only, (I) the Swingline Lender, (II) each L/C Issuer, and
(III) as long as no Default or Event of Default is continuing, the Borrower; provided,
however, that (A) the Borrower shall be deemed to have consented to any such sale,
transfer, negotiation or assignment unless it shall object thereto by written notice to the
Administrative Agent within 5 Business






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Days after having received notice thereof, (B) such sales, transfers, negotiations or
assignments do not have to be ratable between the Facilities but must be ratable among the
Obligations owing to and the obligations owed by such Lender with respect to a Facility and (C) for
each Facility, the aggregate outstanding principal amount (determined as of the effective date of
the applicable Assignment or other sale, transfer, negotiation or assignment) of the Loans,
Commitments and L/C Obligations subject to any such sale, transfer, negotiation or assignment shall
be in a minimum amount of $1,000,000 in the case of a sale, transfer, negotiation or assignment of
Term Loans and $5,000,000 in the case of a sale, transfer, negotiation or assignment of Revolving
Loans and Revolving Credit Commitments, unless such sale, transfer, negotiation or assignment is
made to an existing Lender or an Affiliate or Approved Fund of any existing Lender, is of the
assignor’s (together with its Affiliates and Approved Funds) entire interest in such Facility or is
made with the prior consent of the Borrower and the Administrative Agent. Assignments shall not be
required to be pro rata among the Facilities.




          (c) Procedure. The parties to each sale, transfer, negotiation or assignment made in
reliance on clause (b) above (other than those described in clause (e) or
(f) below) shall execute and deliver to the Administrative Agent an Assignment via an
electronic settlement system designated by the Administrative Agent (or if previously agreed with
the Administrative Agent, via a manual execution and delivery of the assignment) evidencing such
sale, transfer, negotiation or assignment, together with any existing Note subject to such sale,
transfer, negotiation or assignment (or any affidavit of loss therefor acceptable to the
Administrative Agent), any tax forms required to be delivered pursuant to Section 2.17(f)
and payment of an assignment fee in the amount of $3,500 (for which no Group Member shall have any
liability in any event), provided that (1) if a sale, transfer, negotiation or
assignment by a Lender is made to an Affiliate or an Approved Fund of such assigning Lender, then
no assignment fee shall be due in connection with such sale, transfer, negotiation or assignment,
(2) if a sale, transfer, negotiation or assignment by a Lender is made to an assignee that is not
an Affiliate or Approved Fund of such assignor Lender, and concurrently to one or more Affiliates
or Approved Funds of such assignee, then only one assignment fee of $3,500 shall be due in
connection with such sale, transfer, negotiation or assignment, (3) if a sale, transfer,
negotiation or assignment by a Lender is made during the primary syndication of the Facilities,
then no assignment fee shall be due in connection with such sale, transfer, negotiation or
assignment and (4) no assignment fee shall be payable for assignments to and from any of the
Arrangers or any of their respective Affiliates. Upon receipt of all the foregoing, and
conditioned upon such receipt and, if such assignment is made in accordance with Section
11.2(b)(iii), upon the Administrative Agent (and the Borrower, if applicable) consenting to
such Assignment, from and after the effective date specified in such Assignment, the Administrative
Agent shall record or cause to be recorded in the Register the information contained in such
Assignment.




          (d) Effectiveness. Subject to the recording of an Assignment by the Administrative
Agent in the Register pursuant to Section 2.14(b), (i) the assignee thereunder shall become
a party hereto and, to the extent that rights and obligations under the Loan Documents have been
assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a
Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii)
the assignor thereunder shall, to the extent that rights and obligations under this Agreement have
been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving
the termination of the Commitments and the payment in full of the Obligations) and be released from
its obligations under the Loan Documents, other than those relating to events or circumstances
occurring prior to such assignment (and, in the case of an






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Assignment covering all or the remaining portion of an assigning Lender’s rights and
obligations under the Loan Documents, such Lender shall cease to be a party hereto except that each
Lender agrees to remain bound by Article X, Section 11.8 (Right of Setoff)
and Section 11.9 (Sharing of Payments, Etc.) to the extent provided in Section
10.11 (Additional Secured Parties)).




          (e) Grant of Security Interests. In addition to the other rights provided in this
Section 11.2, each Lender may grant a security interest in, or otherwise assign as
collateral, any of its rights under this Agreement, whether now owned or hereafter acquired
(including rights to payments of principal or interest on the Loans), to (A) any federal reserve
bank (pursuant to Regulation A of the Federal Reserve Board), without notice to the Administrative
Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s Securities
by notice to the Administrative Agent; provided, however, that no such holder or
trustee, whether because of such grant or assignment or any foreclosure thereon (unless such
foreclosure is made through an assignment in accordance with clause (b) above), shall be
entitled to any rights of such Lender hereunder and no such Lender shall be relieved of any of its
obligations hereunder.




          (f) Participants and SPVs. In addition to the other rights provided in this
Section 11.2, each Lender may, (x) with notice to the Administrative Agent, grant to an SPV
the option to make all or any part of any Loan that such Lender would otherwise be required to make
hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto
shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign
to such Lender the right to receive payment with respect to any Obligation and (y) without notice
to or consent from the Administrative Agent or the Borrower, sell participations to one or more
Persons (other than the Borrower or any of its Subsidiaries) in or to all or a portion of its
rights and obligations under the Loan Documents (including all its rights and obligations with
respect to the Term Loans, Revolving Loans and Letters of Credit); provided,
however, that, whether as a result of any term of any Loan Document or of such grant or
participation, (i) no such SPV or participant shall have a commitment, or be deemed to have made an
offer to commit, to make Loans hereunder, and, except as provided in the applicable option
agreement, none shall be liable for any obligation of such Lender hereunder, (ii) such Lender’s
rights and obligations, and the rights and obligations of the Loan Parties and the Secured Parties
towards such Lender, under any Loan Document shall remain unchanged and each other party hereto
shall continue to deal solely with such Lender, which shall remain the holder of the Obligations in
the Register, except that (A) each such participant and SPV shall be entitled to the benefit of
Sections 2.16 (Breakage Costs; Increased Costs; Capital Requirements) and
2.17 (Taxes), but only to the extent such participant or SPV delivers the tax forms
such Lender is required to collect pursuant to Section 2.17(f) and then only to the extent
of any amount to which such Lender would be entitled in the absence of any such grant or
participation and (B) each such SPV may receive other payments that would otherwise be made to such
Lender with respect to Loans funded by such SPV to the extent provided in the applicable option
agreement and set forth in a notice provided to the Administrative Agent by such SPV and such
Lender, provided, however, that in no case (including pursuant to clause
(A) or (B) above) shall an SPV or participant have the right to enforce any of the
terms of any Loan Document, and (iii) the consent of such SPV or participant shall not be required
(either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for
any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain
from exercising any powers or rights such Lender may have under or in respect of the Loan Documents
(including the right to enforce or direct enforcement of the Obligations), except for those
described in clauses (ii) (unless such participant’s participation is not increased as a
result thereof), (iii) and (iv) of Section 11.1(a)






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with respect to amounts,
or dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and, in the
case of participants, except for those described in Section 11.1(a)(v) (or amendments,
consents and waivers with respect to Section 10.10 to release all or substantially all of
the Collateral or all or substantially all of the value of the Guaranties). No party hereto shall
institute (and the Borrower shall cause each other Loan Party not to institute) against any SPV
grantee of an option pursuant to this clause (f) any bankruptcy, reorganization,
insolvency, liquidation or similar proceeding prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper of such SPV; provided,
however, that each Lender having designated an SPV as such agrees to indemnify each
Indemnitee against any Liability that may be incurred by, or asserted against, such Indemnitee as a
result of failing to institute such proceeding (including a failure to be reimbursed by such SPV
for any such Liability). The agreement in the preceding sentence shall survive the termination of
the Commitments and the payment in full of the Obligations.




          Section 11.3 Costs and Expenses. Any action taken by any Loan Party under or with
respect to any Loan Document, even if required under any Loan Document or at the request of any
Secured Party, shall be at the expense of such Loan Party, and no Secured Party shall be required
under any Loan Document to reimburse any Loan Party or Group Member therefor except as expressly
provided therein. In addition (but without limiting the obligations of the Borrower under the
Engagement Letter), the Borrower agrees to pay or reimburse upon demand (a) each of the
Administrative Agent and each Arranger and any Related Person of any of the foregoing for all
reasonable out-of-pocket costs and expenses incurred by such Persons or any of their Related
Persons in connection with (i) the investigation, development, preparation, negotiation,
syndication, execution, interpretation or administration of, any modification of any term of or
termination of, any Loan Document, any engagement or proposal letter therefor (including the
Engagement Letter), any other document prepared in connection therewith or the consummation and
administration of any transaction contemplated therein (including periodic audits in connection
therewith and environmental audits and assessments), in each case limited in the case of fees,
charges and disbursements of counsel, to the reasonable fees, charges and disbursements of a single
external legal counsel for all such Persons and any of their Related Persons taken as a whole and,
if reasonably necessary, a single local counsel in each relevant jurisdiction for all such Persons
and any of their Related Persons and, solely in the case of a conflict of interest as reasonably
determined by the affected Person or Persons, one additional counsel in each relevant jurisdiction
to each Person or group of affected Persons similarly situated taken as a whole (but excluding, in
each case, any costs or expenses of internal legal counsel), (ii) fees, costs and expenses incurred
in connection with Intralinks®, SyndTrak Online, ClearPar® or any other
E-System and allocated to the Facilities by the Administrative Agent in its sole discretion and
(iii) fees, charges and disbursements of the auditors, appraisers, printers and other of their
Related Persons retained by or on behalf of any of them or any of their Related Persons, (b) the
Administrative Agent and each L/C Issuer for all reasonable costs and expenses (excluding any costs
or expenses of internal counsel) incurred by it or any of its Related Persons in connection with
the L/C Back-Stop Arrangements entered into by such Persons, (c) the Administrative Agent for all
reasonable costs and expenses (excluding any costs or expenses of internal counsel) incurred by it
or any of its Related Persons in connection with internal audit reviews, field examinations and
Collateral examinations (which shall be reimbursed, in addition to the out-of-pocket costs and
expenses of such examiners, at the per diem rate per individual charged by the Administrative Agent
for its examiners) and (d) each of the Administrative Agent, its Related Persons, and each Lender
and L/C Issuer for all costs and expenses incurred in connection with (i) any refinancing or
restructuring of the credit arrangements provided






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hereunder in the nature of a “work-out”, (ii) the enforcement or preservation of any right or
remedy under any Loan Document, any Obligation, with respect to the Collateral or any other related
right or remedy or (iii) the commencement, defense, conduct of, intervention in, or the taking of
any other action with respect to, any proceeding (including any bankruptcy or insolvency
proceeding) related to any Group Member, Loan Document, Obligation or Transaction (or the response
to and preparation for any subpoena or request for document production relating thereto), including
fees and disbursements of counsel (excluding any costs or expenses of internal counsel).




          Section 11.4 Indemnities. (a) Subject to the provisions of Section 11.3
with respect to the limitations on reimbursement of costs and expenses of external counsel and
internal counsel described therein, the Borrower agrees to indemnify, hold harmless and defend the
Administrative Agent, the Collateral Agent, the Syndication Agent, each Co-Documentation Agent,
each Arranger, each Lender, each L/C Issuer, each Secured Hedging Counterparty, each Secured
Treasury Services Creditor, each Person that each L/C Issuer causes to Issue Letters of Credit
hereunder and each of their respective Related Persons (each such Person being an
“Indemnitee”) from and against all Liabilities (including brokerage commissions, fees and
other compensation) that may be imposed on, incurred by or asserted against any such Indemnitee in
any matter relating to or arising out of, in connection with or as a result of (i) any Loan
Document, any Disclosure Document, any Obligation (or the repayment thereof), any Letter of Credit,
the use or intended use of the proceeds of any Loan or the use of any Letter of Credit, any
Transaction, or any securities filing of, or with respect to, any Group Member, (ii) any engagement
letter (including the Engagement Letter), proposal letter or term sheet with any Person or any
Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each
case entered into by or on behalf of any Group Member or any Affiliate of any of them in connection
with any of the foregoing and any Contractual Obligation entered into in connection with any
E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation,
litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related
Persons, any holders of Securities or creditors (and including attorneys’ fees in any case),
whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and
whether or not based on any securities or commercial law or regulation or any other Requirement of
Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other
act, event or transaction related, contemplated in or attendant to any of the foregoing
(collectively, the “Indemnified Matters”); provided, however, that the
Borrower shall not have any liability under this Section 11.4 to any Indemnitee with
respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any
Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has
resulted from the gross negligence or willful misconduct of such Indemnitee, as determined by a
court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, the
Borrower waives and agrees not to assert against any Indemnitee, and shall cause each other Loan
Party to waive and not assert against any Indemnitee, any right of contribution with respect to any
Liabilities that may be imposed on, incurred by or asserted against any Related Person.




          (b) Without limiting the foregoing, “Indemnified Matters” includes all Environmental
Liabilities, including those arising from, or otherwise involving, any property of any Related
Person or any actual, alleged or prospective damage to property or natural resources or harm or
injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such
property or natural resource or any property on or contiguous to any real property of any Related
Person, whether or not, with respect to any such Environmental Liabilities, any






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Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the
successor-in-interest to any Related Person or the owner, lessee or operator of any property of any
Related Person through any foreclosure action, in each case except to the extent such Environmental
Liabilities (i) are incurred solely following foreclosure by any Secured Party or following any
Secured Party having become the successor-in-interest to any Loan Party and (ii) are attributable
solely to acts of such Indemnitee.




          Section 11.5 Survival. Any indemnification or other protection provided to any
Indemnitee pursuant to any Loan Document (including pursuant to Section 2.17
(Taxes), Section 2.16 (Breakage Costs; Increased Costs; Capital
Requirements), Article X (The Administrative Agent), Section 11.3
(Costs and Expenses), Section 11.4 (Indemnities) or this Section
11.5) and all representations and warranties made in any Loan Document shall (A) survive the
termination of the Commitments and the payment in full of other Obligations and (B) inure to the
benefit of any Person that at any time held a right thereunder (as an Indemnitee or otherwise) and,
thereafter, its successors and permitted assigns.




          Section 11.6 Limitation of Liability for Certain Damages. In no event shall the
Borrower or any other Loan Party or any Indemnitee be liable on any theory of liability for any
special, indirect, consequential or punitive damages (including any loss of profits, business or
anticipated savings), except, in the case of the Borrower and each other Loan Party, to the extent
that any such damages consist of or arise from claims against any Indemnitee by unaffiliated third
parties. The Borrower hereby waives, releases and agrees (and shall cause each other Loan Party to
waive, release and agree) not to sue upon any such claim for any special, indirect, consequential
or punitive damages, whether or not accrued and whether or not known or suspected to exist in its
favor.




          Section 11.7 Lender-Creditor Relationship. The relationship between the Lenders,
the L/C Issuers and the Administrative Agent, on the one hand, and the Loan Parties, on the other
hand, is solely that of lender and creditor. No Secured Party has any fiduciary relationship or
duty to any Loan Party arising out of or in connection with, and there is no agency, tenancy or
joint venture relationship between the Secured Parties and the Loan Parties by virtue of, any Loan
Document or any transaction contemplated therein.




          Section 11.8 Right of Setoff. Each of the Administrative Agent, each Lender, each
L/C Issuer and each Affiliate (including each branch office thereof) of any of them is hereby
authorized, without notice or demand (each of which is hereby waived by the Borrower), at any time
and from time to time during the continuance of any Event of Default and to the fullest extent
permitted by applicable Requirements of Law, to set off and apply any and all deposits (whether
general or special, time or demand, provisional or final) at any time held and other Indebtedness,
claims or other obligations at any time owing by the Administrative Agent, such Lender, such L/C
Issuer or any of their respective Affiliates to or for the credit or the account of the Borrower
against any Obligation of any Loan Party now or hereafter existing, whether or not any demand was
made under any Loan Document with respect to such Obligation and even though such Obligation may be
unmatured. Each of the Administrative Agent, each Lender and each L/C Issuer agrees promptly to
notify the Borrower and the Administrative Agent after any such setoff and application made by such
Lender or its Affiliates; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application. The rights under this Section
11.8 are in addition to any other rights and remedies (including other rights of setoff) that
the Administrative Agent, the Lenders and the L/C Issuers and their Affiliates and other Secured
Parties may have.







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          Section 11.9 Sharing of Payments, Etc. (a) If any Lender, directly or through an
Affiliate or branch office thereof, obtains any payment of any Obligation of any Loan Party
(whether voluntary, involuntary or through the exercise of any right of setoff or the receipt of
any Collateral or “proceeds” (as defined under the applicable UCC) of Collateral) other
than pursuant to Sections 2.16 (Breakage Costs; Increased Costs; Capital
Requirements), 2.17 (Taxes), 2.18 (Substitution of Lenders) and
2.21 (Reverse Dutch Auction Repurchases) and such payment exceeds the amount such
Lender would have been entitled to receive if all payments had gone to, and been distributed by,
the Administrative Agent in accordance with the provisions of the Loan Documents, such Lender shall
purchase for cash from other Secured Parties such participations in their Obligations as necessary
for such Lender to share such excess payment with such Secured Parties to ensure such payment is
applied as though it had been received by the Administrative Agent and applied in accordance with
this Agreement (or, if such application would then be at the discretion of the Borrower, applied to
repay the Obligations in accordance herewith); provided, however, that (a) if such
payment is rescinded or otherwise recovered from such Lender or L/C Issuer in whole or in part,
such purchase shall be rescinded and the purchase price therefor shall be returned to such Lender
or L/C Issuer without interest and (b) such Lender shall, to the fullest extent permitted by
applicable Requirements of Law, be able to exercise all its rights of payment (including the right
of setoff) with respect to such participation as fully as if such Lender were the direct creditor
of the Borrower in the amount of such participation.




          (b) Notwithstanding anything to the contrary contained herein, the provisions of the preceding
Section 11.9(a) shall be subject to the express provisions of this Agreement which require,
or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting
Lenders.




          Section 11.10 Marshaling; Payments Set Aside. No Secured Party shall be under any
obligation to marshal any property in favor of any Loan Party or any other party or against or in
payment of any Obligation. To the extent that any Secured Party receives a payment from the
Borrower, from the proceeds of the Collateral, from the exercise of its rights of setoff, any
enforcement action or otherwise, and such payment is subsequently, in whole or in part,
invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not occurred.




          Section 11.11 Notices. (a) Addresses. All notices, demands, requests,
directions and other communications required or expressly authorized to be made by this Agreement
shall, whether or not specified to be in writing but unless otherwise expressly specified to be
given by any other means, be given in writing and (i) addressed (A) if to the Borrower, to Alere
Inc., 51 Sawyer Road, Suite 200, Waltham, Massachusetts 02453, Attention: David Teitel, Chief
Financial Officer, Tel: (781) 314-4174, Fax: (781) 647-3939, with copies to Alere Inc., 51 Sawyer
Road, Suite 200, Waltham, Massachusetts 02453, Attention: General Counsel, Tel: (781) 647-3900,
Fax: (781) 647-3939, and Foley Hoag LLP, Seaport World Trade Center West, 155 Seaport Boulevard,
Boston, Massachusetts 02210-2600, Attention: Malcolm Henderson, Esq., Tel: (617) 832.1276, Fax:
(617) 832-7000, (B) if to the Administrative Agent or the Swingline Lender, to General Electric
Capital Corporation, 2 Bethesda Metro Center, Suite 600, Bethesda, MD 20814, Attention: Alere
Account Manager, Tel: (301) 634-3215, Fax: (866) 673-0624, and (C) otherwise to the party to be
notified at its address specified opposite its name on Schedule II or on the signature page
of any applicable Assignment, (ii) posted to Intralinks® 






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(to the extent such system is available and set up by or at the direction of the Administrative
Agent prior to posting) in an appropriate location by uploading such notice, demand, request,
direction or other communication to www.intralinks.com, faxing it to 866-545-6600 with an
appropriate bar-coded fax coversheet or using such other means of posting to Intralinks®
as may be available and reasonably acceptable to the Administrative Agent prior to such posting,
(iii) posted to any other E-System set up by or at the direction of the Administrative Agent in an
appropriate location or (iv) addressed to such other address as shall be notified in writing (A) in
the case of the Borrower, the Administrative Agent and the Swingline Lender, to the other parties
hereto and (B) in the case of all other parties, to the Borrower and the Administrative Agent.
Transmission by electronic mail (including E-Fax, even if transmitted to the fax numbers set forth
in clause (i) above) shall not be sufficient or effective to transmit any such notice under
this clause (a) unless such transmission is an available means to post to any E-System.




          (b) Effectiveness. All communications described in clause (a) above and all
other notices, demands, requests and other communications made in connection with this Agreement
shall be effective and be deemed to have been received (i) if delivered by hand, upon personal
delivery, (ii) if delivered by overnight courier service, one Business Day after delivery to such
courier service, (iii) if delivered by mail, when deposited in the mails, (iv) if delivered by
facsimile (other than to post to an E-System pursuant to clause (a)(ii) or (a)(iii)
above), upon sender’s receipt of confirmation of proper transmission, and (v) if delivered by
posting to any E-System (including any facsimile so posted), on the later of the date of such
posting in an appropriate location and the date access to such posting (and notice of such access)
is given to the recipient thereof in accordance with the standard procedures applicable to such
E-System; provided, however, that no communications to the Administrative Agent
pursuant to Article II or Article X shall be effective until received by the
Administrative Agent.




          Section 11.12 Electronic Transmissions. (a) Authorization. Subject to
the provisions of Section 11.11(a), each of the Administrative Agent, the Borrower, the
Lenders, the L/C Issuers and each of their Related Persons is authorized (but not required) to
transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions
in connection with any Loan Document and the transactions contemplated therein. Each of the
Borrower and each Secured Party hereby acknowledges and agrees, and the Borrower shall cause each
other Group Member to acknowledge and agree, that the use of Electronic Transmissions is not
necessarily secure and that there are risks associated with such use, including risks of
interception, disclosure and abuse and each indicates it assumes and accepts such risks by hereby
authorizing the transmission of Electronic Transmissions.




          (b) Signatures. Subject to the provisions of Section 11.11(a), (i)(A) no
posting to any E-System shall be denied legal effect merely because it is made electronically, (B)
each E-Signature on any such posting shall be deemed sufficient to satisfy any requirement for a
“signature” and (C) each such posting shall be deemed sufficient to satisfy any requirement for a
“writing”, in each case including pursuant to any Loan Document, any applicable provision of any
UCC, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and
National Commerce Act and any substantive or procedural Requirement of Law governing such subject
matter, (ii) each such posting that is not readily capable of bearing either a signature or a
reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or
logically associating with such posting, an E-Signature, upon which each Secured Party and Loan
Party may rely and assume the authenticity thereof, (iii) each such posting containing a signature,
a reproduction of a signature or an E-Signature shall, for all intents and purposes, have the same






127









 







effect and weight as a signed paper original and (iv) each party hereto or beneficiary hereto
agrees not to contest the validity or enforceability of any posting on any E-System or E-Signature
on any such posting under the provisions of any applicable Requirement of Law requiring certain
documents to be in writing or signed; provided, however, that nothing herein shall
limit such party’s or beneficiary’s right to contest whether any posting to any E-System or
E-Signature has been altered after transmission.




          (c) Separate Agreements. All uses of an E-System shall be governed by and subject to,
in addition to Section 11.11 and this Section 11.12, separate terms and conditions
posted or referenced in such E-System and related Contractual Obligations executed by Secured
Parties and Group Members in connection with the use of such E-System.




          (d) Limitation of Liability. All E-Systems and Electronic Transmissions shall be
provided “as is” and “as available”. None of the Administrative Agent, any Arranger or any of
their respective Related Persons warrants the accuracy, adequacy or completeness of any E-Systems
or Electronic Transmission, and each disclaims all liability for errors or omissions therein. No
warranty of any kind is made by the Administrative Agent, any Arranger or any of their respective
Related Persons in connection with any E-Systems or Electronic Transmission, including any warranty
of merchantability, fitness for a particular purpose, non-infringement of third-party rights or
freedom from viruses or other code defects. Each of the Borrower and each Secured Party agrees
(and the Borrower shall cause each other Loan Party to agree) that neither the Administrative Agent
nor any Arranger has any responsibility for maintaining or providing any equipment, software,
services or any testing required in connection with any Electronic Transmission or otherwise
required for any E-System.




          Section 11.13 Governing Law. This Agreement, each other Loan Document that does
not expressly set forth its applicable law, and the rights and obligations of the parties hereto
and thereto shall be governed by, and construed and interpreted in accordance with, the law of the
State of New York.




          Section 11.14 Jurisdiction. (a) Submission to Jurisdiction. Any legal
action or proceeding with respect to any Loan Document shall be brought in the courts of the State
of New York located in The City of New York, Borough of Manhattan, or of the United States of
America for the Southern District of New York and, by execution and delivery of this Agreement,
each party hereto hereby accepts for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of the aforesaid courts. The parties hereto (and, to
the extent set forth in any other Loan Document, each other Loan Party) hereby irrevocably waive
any objection, including any objection to the laying of venue or based on the grounds of forum non
conveniens, that any of them may now or hereafter have to the bringing of any such action or
proceeding in such jurisdictions.




          (b) Service of Process. The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) hereby irrevocably waives personal service of any and all legal
process, summons, notices and other documents and other service of process of any kind and consents
to such service in any suit, action or proceeding brought in the United States of America with
respect to or otherwise arising out of or in connection with any Loan Document by any means
permitted by applicable Requirements of Law, including by the mailing thereof (by registered or
certified mail, postage prepaid) to the address of Borrower specified in Section 11.11 (and
shall be effective when such mailing shall be effective, as provided therein). The Borrower (and,
to the extent set forth in any other Loan Document, each other Loan Party)






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agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law.




          (c) Non-Exclusive Jurisdiction. Nothing contained in this Section 11.14
(including clause (a) hereof), shall affect the right of the Administrative Agent or any Lender
or L/C Issuer to serve process in any other manner permitted by applicable Requirements of Law or
commence legal proceedings or otherwise proceed against any Loan Party in any other jurisdiction.




          Section 11.15 Waiver of Jury Trial. Each party hereto hereby irrevocably waives
trial by jury in any suit, action or proceeding with respect to, or directly or indirectly arising
out of, under or in connection with, any Loan Document or the transactions contemplated therein or
related thereto (whether founded in contract, tort or any other theory). Each party hereto (A)
certifies that no other party and no Related Person of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (B) acknowledges that it and the other parties hereto have been induced to
enter into the Loan Documents, as applicable, by the mutual waivers and certifications in this
Section 11.15.




          Section 11.16 Severability. Any provision of any Loan Document being held illegal,
invalid or unenforceable in any jurisdiction shall not affect any part of such provision not held
illegal, invalid or unenforceable, any other provision of any Loan Document or any part of such
provision in any other jurisdiction.




          Section 11.17 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Signature pages may be detached from multiple separate counterparts and
attached to a single counterpart. Delivery of an executed signature page of this Agreement by
facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually
executed counterpart hereof.




          Section 11.18 Entire Agreement. The Loan Documents embody the entire agreement of
the parties and supersede all prior agreements and understandings relating to the subject matter
thereof and any prior letter of interest, commitment letter, fee letter, confidentiality and
similar agreements involving any Loan Party and any of the Administrative Agent, any Lender or any
L/C Issuer or any of their respective Affiliates relating to a financing of substantially similar
form, purpose or effect. In the event of any conflict between the terms of this Agreement and any
other Loan Document, the terms of this Agreement shall govern (unless such terms of such other Loan
Documents are necessary to comply with applicable Requirements of Law, in which case such terms
shall govern to the extent necessary to comply therewith).




          Section 11.19 Use of Name. The Borrower agrees, and shall cause each other Loan
Party to agree, that it shall not, and none of its Affiliates shall, issue any press release or
other public disclosure (other than any document filed with any Governmental Authority relating to
a public offering of the Securities of any Loan Party) using the name, logo or otherwise referring
to GE Capital or of any of its Affiliates, the Loan Documents or any transaction contemplated
therein to which the Secured Parties are party without at least 2 Business Days’ prior notice to GE
Capital and without the prior consent of GE Capital, in each case, except to the extent required to
do so under applicable Requirements of Law.







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          Section 11.20 Non-Public Information; Confidentiality. (a) The Administrative
Agent, each Lender, Swingline Lender and each L/C Issuer acknowledges and agrees that it may
receive material non-public information hereunder concerning the Loan Parties and their Affiliates
and Securities and agrees to use such information in compliance with all relevant policies,
procedures and Contractual Obligations and applicable Requirements of Laws (including United States
federal and state security laws and regulations).




          (b) Each Lender, Swingline Lender, each L/C Issuer and the Administrative Agent agrees to use
all reasonable efforts to maintain, in accordance with its customary practices, the confidentiality
of information obtained by it pursuant to any Loan Document, except that such information may be
disclosed (i) with the Borrower’s consent, (ii) to Related Persons of such Lender, L/C Issuer or
the Administrative Agent, as the case may be, or to any Person that any L/C Issuer causes to Issue
Letters of Credit hereunder, in each case, that are advised of the confidential nature of such
information and are instructed to keep such information confidential, (iii) to the extent such
information presently is or hereafter becomes available to such Lender, L/C Issuer or the
Administrative Agent, as the case may be, on a non-confidential basis from a source other than any
Loan Party, (iv) to the extent disclosure is required by applicable Requirements of Law or other
legal process or requested or demanded by any Governmental Authority, (v) to the extent necessary
or customary for inclusion in league table measurements or in any tombstone or other advertising
materials (and the Loan Parties consent to the publication of such tombstone or other advertising
materials by the Administrative Agent, any Lender, any L/C Issuer or any of their Related Persons),
(vi) to the National Association of Insurance Commissioners or any similar organization, any
examiner or any nationally recognized rating agency or otherwise to the extent consisting of
general portfolio information that does not identify borrowers, (vii) to current or prospective
assignees, SPVs grantees of any option described in Section 11.2(f) or participants,
pledgees referred to in Section 11.2(e), direct or indirect contractual counterparties to
any Hedging Agreement permitted hereunder and to their respective Related Persons, in each case to
the extent such assignees, participants, pledgees, counterparties or Related Persons agree to be
bound by provisions substantially similar to (or at least as restrictive as) the provisions of this
Section 11.20 and (viii) in connection with the exercise of any remedy under any Loan
Document. In the event of any conflict between the terms of this Section 11.20 and those
of any other Contractual Obligation entered into with any Loan Party (whether or not a Loan
Document), the terms of this Section 11.20 shall govern.




          Section 11.21 Patriot Act Notice. Each Lender subject to the Patriot Act hereby
notifies the Borrower and each other Loan Party that, pursuant to Section 326 thereof, it is
required to obtain, verify and record information that identifies the Borrower and each other Loan
Party, including the name and address of the Borrower and each other Loan Party and other
information allowing such Lender to identify the Borrower and each other Loan Party in accordance
with such act.




          Section 11.22 Senior Indebtedness. The Obligations constitute “Senior Debt” or
“Senior Indebtedness”, as applicable, and “Designated Senior Debt” or “Designated Senior
Indebtedness”, as applicable, under and as defined in, and for the purposes of, the Existing
Subordinated Notes Indentures.




[SIGNATURE PAGES FOLLOW]




130









 





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




	 	 	 	 	 
	 	ALERE INC., as Borrower

 	 
	 	By:  	/s/ David A. Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title:  	CFO 	 
	 



Signature Page to Alere Inc. Credit Agreement 2011





131









 





	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION, as 

     Administrative Agent and Lender

 	 
	 	By:  	/s/ Ryan Guenin
 	 
	 	 	Name:  	Ryan Guenin 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 
	 	GE CAPITAL FINANCIAL INC., as Lender

 	 
	 	By:  	/s/ Stephen F. Schroppe
 	 
	 	 	Name:  	Stephen F. Schroppe 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





132









 





	 	 	 	 	 
	 	JEFFERIES FINANCE LLC, as Syndication Agent and Lender

 	 
	 	By:  	/s/ E.J. Hess
 	 
	 	 	Name:  	E.J. Hess 	 
	 	 	Title:  	Managing Director 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





133









 





	 	 	 	 	 
	 	CREDIT SUISSE SECURITIES (USA) LLC, as Co-Documentation Agent

 	 
	 	By:  	/s/ Tom Davidson
 	 
	 	 	Name:  	Tom Davidson 	 
	 	 	Title:  	Managing Director 	 
	 
	 	CREDIT SUISSE AG CAYMAN ISLANDS BRANCH, as Lender

 	 
	 	By:  	/s/ Ari Bruger
 	 
	 	 	Name:  	Ari Bruger 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                      /s/ Kevin Buddhdew
 	 
	 	 	Name:  	Kevin Buddhdew 	 
	 	 	Title:  	Associate 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





134









 





	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA, as Co-Documentation Agent and Lender

 	 
	 	By:  	/s/ Meredith Mackey
 	 
	 	 	Name:  	Meredith Mackey 	 
	 	 	Title:  	Authorized Signatory 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





135









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT,

DATED AS OF THE DATE FIRST WRITTEN ABOVE,

AMONG ALERE INC., THE LENDERS FROM TIME TO

TIME PARTY HERETO, GENERAL ELECTRIC CAPITAL

CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT

AND CREDIT SUISSE SECURITIES (USA) LLC,

GOLDMAN SACHS BANK USA, DnB NOR BANK ASA

AND SUNTRUST BANK AS CO-DOCUMENTATION

AGENTS



DnB NOR BANK ASA, as Co-Documentation Agent and Lender

 	 
	 	By:  	/s/ Phil Kurpiewski
 	 
	 	 	Name: Phil Kurpiewski	 
	 	 	Title:  
Senior Vice President 	 
	 
	 	 	 
	 	By:  	                      /s/ Kristie Li
 	 
	 	 	Name:  	Kristie Li 	 
	 	 	Title:  	Vice President 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





136









 





	 	 	 	 	 
	 	SUNTRUST BANK, as Co-Documentation Agent and Lender

 	 
	 	By:  	/s/ C. David Yates
 	 
	 	 	Name:  	C. David Yates 	 
	 	 	Title:  	Managing Director 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





137









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF

THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC., THE

LENDERS FROM TIME TO TIME PARTY HERETO, GENERAL

ELECTRIC CAPITAL CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT AND CREDIT

SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA AND SUNTRUST BANK AS

CO-DOCUMENTATION AGENTS



THE BANK OF NOVA SCOTIA:

 	 
	 	By:  	/s/ Michelle C. Phillips
 	 
	 	 	Name:  	Michelle C. Phillips 	 
	 	 	Title:  	Director 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





138









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF

THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC., THE

LENDERS FROM TIME TO TIME PARTY HERETO, GENERAL

ELECTRIC CAPITAL CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT AND CREDIT

SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA AND SUNTRUST BANK AS

CO-DOCUMENTATION AGENTS



Bank of the West:

 	 
	 	By:  	/s/ Sidney Jordan
 	 
	 	 	Name:  	Sidney Jordan 	 
	 	 	Title:  	Vice President 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





139









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF

THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC., THE

LENDERS FROM TIME TO TIME PARTY HERETO, GENERAL

ELECTRIC CAPITAL CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT AND CREDIT

SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA AND SUNTRUST BANK AS

CO-DOCUMENTATION AGENTS



HSBC Bank USA, National Association:

 	 
	 	By:  	/s/ David A. Carroll
 	 
	 	 	Name:  	David A. Carroll 	 
	 	 	Title:  	Vice President 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





140









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF

THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC., THE

LENDERS FROM TIME TO TIME PARTY HERETO, GENERAL

ELECTRIC CAPITAL CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT AND CREDIT

SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA AND SUNTRUST BANK AS

CO-DOCUMENTATION AGENTS



HSBC Bank Plc:

 	 
	 	By:  	/s/ Mike F. Kear
 	 
	 	 	Name:  	Mike F. Kear 	 
	 	 	Title:  	Global Relationship Manager 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





141









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF

THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC., THE

LENDERS FROM TIME TO TIME PARTY HERETO, GENERAL

ELECTRIC CAPITAL CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT AND CREDIT

SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA AND SUNTRUST BANK AS

CO-DOCUMENTATION AGENTS



RAYMOND JAMES BANK, FSB:

 	 
	 	By:  	/s/ Alexander L. Rody
 	 
	 	 	Name:  	Alexander L. Rody 	 
	 	 	Title:  	Senior Vice President 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





142









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF

THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC., THE

LENDERS FROM TIME TO TIME PARTY HERETO, GENERAL

ELECTRIC CAPITAL CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT AND CREDIT

SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA AND SUNTRUST BANK AS

CO-DOCUMENTATION AGENTS



Royal Bank of Canada, as a Lender:

 	 
	 	By:  	/s/ Dean Sas
 	 
	 	 	Name:  	Dean Sas 	 
	 	 	Title:  	Authorized Signatory 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





143









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF

THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC., THE

LENDERS FROM TIME TO TIME PARTY HERETO, GENERAL

ELECTRIC CAPITAL CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT AND CREDIT

SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA AND SUNTRUST BANK AS

CO-DOCUMENTATION AGENTS



RBS Citizens, NA

 	 
	 	By:  	/s/ Cindy Chen
 	 
	 	 	Name:  	Cindy Chen 	 
	 	 	Title:  	Senior Vice President 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





144









 





	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF

THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC., THE

LENDERS FROM TIME TO TIME PARTY HERETO, GENERAL

ELECTRIC CAPITAL CORPORATION AS ADMINISTRATIVE AGENT,

JEFFERIES FINANCE LLC AS SYNDICATION AGENT AND CREDIT

SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,

DnB NOR BANK ASA AND SUNTRUST BANK AS

CO-DOCUMENTATION AGENTS



SIEMENS FINANCIAL SERVICES, INC.

 	 
	 	By:  	/s/ Anthony Casciano
 	 
	 	 	Name:  	Anthony Casciano 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Douglas Maher
 	 
	 	 	Name:  	Douglas Maher 	 
	 	 	Title:  	Managing Director 	 
	 


Signature Page to Alere Inc. Credit Agreement 2011





145









 





Schedule I




COMMITMENTS




	 	      	 	 	 	      	 	 	 	      	 	 	 	      	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Delayed-Draw
	 	 	Revolving Credit	 	A Term Loan	 	B Term Loan	 	Term Loan
	Lender	 	Commitment	 	Commitment	 	Commitment	 	Commitment
	Jefferies Finance LLC
	 	$	28,432,624.11	 	 	$	113,279,821.68	 	 	$	250,500,000.00	 	 	$	54,374,242.56	 
	General Electric Capital Corporation
	 	$	28,432,624.11	 	 	$	99,279,821.68	 	 	$	250,500,000.00	 	 	$	13,374,242.56	 
	GE Capital Financial, Inc.
	 	$	0.00	 	 	$	14,000,000.00	 	 	$	0.00	 	 	$	41,000,000.00	 
	Credit Suisse AG, Cayman Islands Branch
	 	$	50,000,000.00	 	 	$	20,270,270.27	 	 	$	242,000,000.00	 	 	$	9,729,729.73	 
	Goldman Sachs Bank USA
	 	$	28,432,624.11	 	 	$	88,779,767.23	 	 	$	167,000,000.00	 	 	$	42,614,231.96	 
	DnB NOR Bank ASA
	 	$	26,595,744.68	 	 	$	66,489,361.70	 	 	$	0.00	 	 	$	31,914,893.62	 
	Raymond James Bank, FSB
	 	$	5,319,148.94	 	 	$	13,297,872.34	 	 	$	15,000,000.00	 	 	$	6,382,978.72	 
	Royal Bank of Canada
	 	$	15,957,446.81	 	 	$	39,893,617.02	 	 	$	0.00	 	 	$	19,148,936.17	 
	The Bank of Nova Scotia
	 	$	12,765,957.45	 	 	$	31,914,893.61	 	 	$	0.00	 	 	$	15,319,148.94	 
	Siemens Financial Services, Inc.
	 	$	6,382,978.72	 	 	$	15,957,446.81	 	 	$	0.00	 	 	$	7,659,574.47	 
	HSBC Bank USA
	 	$	5,319,148.94	 	 	$	13,297,872.34	 	 	$	0.00	 	 	$	6,382,978.72	 
	HSBC Bank Plc
	 	$	5,319,148.94	 	 	$	13,297,872.34	 	 	$	0.00	 	 	$	6,382,978.72	 
	SunTrust Bank
	 	$	26,595,744.68	 	 	$	66,489,361.70	 	 	$	0.00	 	 	$	31,914,893.62	 
	RBS Citizens, National Association
	 	$	7,446,808.51	 	 	$	18,617,021.28	 	 	$	0.00	 	 	$	8,936,170.21	 
	Bank of the West
	 	$	3,000,000.00	 	 	$	10,135,000.00	 	 	$	0.00	 	 	$	4,865,000.00	 
	TOTAL
	 	$	250,000,000.00	 	 	$	625,000,000.00	 	 	$	925,000,000.00	 	 	$	300,000,000.00	 






146









 





Schedule II




ADDRESSES FOR NOTICES




	 	 	 
	LENDERS:	 	CONTACT DETAILS:
	Bank of the West

	 	Credit Contact:
	1977 Saturn Street, 3rd Floor

	 	Attention: Sidney Jordan
	Monterey Park, CA 91755

	 	Telephone: 213-972-0625
	 

	 	Telecopier: 213-972-0618
	 

	 	Email: sidney.jordan@bankofthewest.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Sandra Fox
	 

	 	Telephone: 323-727-3065
	 

	 	Telecopier: 323-727-3099
	 

	 	Email: sandra.fox@bankofthewest.com
	 
	 	 
	Credit Suisse AG, Cayman Islands Branch

	 	Credit Contact:
	Eleven Madison Avenue

	 	Attention: Ari Bruger
	New York, New York 10010

	 	Telephone: 212-538-5577
	 

	 	Telecopier: 646-935-8075
	 

	 	Email: ari.bruger@credit-suisse.com
	 
	 	 
	 

	 	Administration Contact:
	 

	 	Attention: Eric Ceglowski
	 

	 	Telephone: 919-994-1357
	 

	 	Telecopier: 866-469-3871
	 

	 	Email: eric.ceglowski@credit-suisse.com
	 
	 	 
	DnB NOR Bank ASA

	 	Credit Contact:
	200 Park Avenue, 31st Floor

	 	Attention: Geshu Sugandh
	New York, New York 10166

	 	Telephone: 212-681-3873
	 

	 	Telecopier: 212-681-3900
	 

	 	Email: geshu.sugandh@dnbnor.no
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Marybelle Ortiz
	 

	 	Telephone: 212-681-3848
	 

	 	Telecopier: 212-681-4123
	 

	 	Email: marybelle.ortiz@dnbnor.no
	 
	 	 
	General Electric Capital Corporation

	 	Credit Contact:
	2 Bethesda Metro Center

	 	Attention: Ryan Guenin
	Bethesda, MD 20814

	 	Telephone: 301-634-3215
	 

	 	Telecopier: 866-673-0624
	 

	 	Email: ryan.guenin@ge.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Rose Gaskin
	 

	 	Telephone: 312-441-7644
	 

	 	Telecopier: 312-441-7871
	 

	 	Email: rose.gaskin@ge.com






147









 






	 	 	 
	LENDERS:	 	CONTACT DETAILS:
	GE Capital Financial Inc.

	 	Credit Contact:
	2 Bethesda Metro Center

	 	Attention: Ryan Guenin
	Bethesda, MD 20814

	 	Telephone: 301-634-3215
	 

	 	Telecopier: 866-673-0624
	 

	 	Email: ryan.guenin@ge.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Rose Gaskin
	 

	 	Telephone: 312-441-7644
	 

	 	Telecopier: 312-441-7871
	 

	 	Email: rose.gaskin@ge.com
	 
	 	 
	Goldman Sachs Bank USA

	 	Credit Contact:
	200 West Street

	 	Attention: Lauren Day
	New York, New York 10282

	 	Telephone: 212-934-3921
	 

	 	Email: gsd.link@gs.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Telephone: 212-902-1099
	 

	 	Telecopier: 917-977-3966
	 

	 	Email: gs-sbd-admin-contacts@ny.email.gs.com
	 
	 	 
	HSBC Bank USA

	 	Credit Contact:
	520 Madison Avenue

	 	Attention: David Carroll
	New York, New York 10022

	 	Telephone: 317-292-8495
	 

	 	Telecopier: 617-338-3849
	 

	 	Email: david.x.carroll@us.hsbc.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Shoba Rani
	 

	 	Telephone: 716-841-6216
	 

	 	Telecopier: 917-229-0974
	 

	 	Email: N/A — Notices must be faxed
	 
	 	 
	HSBC Bank Plc

	 	Credit Contact:
	8 Canada Square, Canary Wharf

	 	Attention: Mike F. Kear
	London E14 5HQ

	 	Telephone: 0044-8455-856419
	United Kingdom

	 	Telecopier: 0044-8455-877941
	 

	 	Email: mikekear@hsbc.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Process Manager
	 

	 	Telephone: 020-7991-8296
	 

	 	Telecopier: 020-7992-4680
	 
	 	 
	Jefferies Finance LLC

	 	Credit Contact:
	520 Madison Avenue

	 	Attention: JR Young
	New York, New York 10022

	 	Telephone: 212-284-8191
	 

	 	Telecopier: 212-284-3444
	 

	 	Email: jyoung@jefferies.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Michael Burns






148









 






	 	 	 
	LENDERS:	 	CONTACT DETAILS:
	 

	 	Telephone: 617-662-9741
	 

	 	Telecopier: 617-937-0638
	 

	 	Email: michael.burnsjr@statestreet.com
	 
	 	 
	Raymond James Bank, FSB

	 	Credit Contact:
	710 Carillon Parkway

	 	Attention: Alexander L. Rody
	St. Petersburg, FL 33716

	 	Telephone: 615-321-4238
	 

	 	Telecopier: 866-205-1396
	 

	 	(preference of email to
	 

	 	RJBank-LoanOpsCorp@RaymondJames.com)
	 

	 	Email: alex.rody@raymondjames.com
	 
	 	 
	RBS Citizens, National Association

	 	Credit Contact:
	One Citizens Plaza

	 	Attention: Cindy Chen
	Providence, RI 02903

	 	Telephone: 617-994-7722
	 

	 	Email: cindy.chen@rbscitizens.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Carissa D’Apolito
	 

	 	Telephone: 781-655-4396
	 

	 	Telecopier: 781-655-4050
	 

	 	Email: carissa.joubert@rbscitizens.com
	 
	 	 
	Royal Bank of Canada

	 	Credit Contact:
	200 Vesey Street, 3 WFC

	 	Attention: Dean Sas
	New York, New York 10281

	 	Telephone: 212-428-629
	 

	 	Telecopier: 212-428-6460
	 

	 	Email: dean.sas@rbccm.com
	 
	 	 
	 

	 	Finance/Repayment Contact:
	 

	 	Attention: Michael Wang
	 

	 	Telephone: 416-842-6987
	 

	 	Telecopier: 416-842-4020
	 

	 	Email: michael.wang@rbccm.com
	 
	 	 
	Siemens Financial Services, Inc.

	 	Credit Contact:
	170 Wood Avenue South

	 	Attention: Doug Maher
	Iselin, NJ 08830

	 	Telephone: 732-476-3562
	 

	 	Telecopier: 732-476-3567
	 

	 	Email: douglas.maher@siemens.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: April Greaves-Bryan
	 

	 	Telephone: 732-476-3443
	 

	 	Telecopier: 919-374-9105
	 

	 	Email: sfspops.sfs@siemens.com
	 
	 	 
	SunTrust Bank

	 	Credit Contact:
	303 Peachtree Street, 25th Floor

	 	Attention: John Cappellari
	Atlanta, GA 30308

	 	Telephone: 404-813-6001
	 

	 	Telecopier: 404-588-7497
	 

	 	Email: john.cappellari@suntrust.com
	 
	 	 
	 

	 	Operations Contact:






149









 






	 	 	 
	LENDERS:	 	CONTACT DETAILS:
	 

	 	Attention: Allyson Mohan
	 

	 	Telephone: 404-813-0030
	 

	 	Telecopier: 404-588-4401
	 

	 	Email: allyson.mohan@suntrust.com
	 
	 	 
	The Bank of Nova Scotia

	 	Credit Contact:
	711 Louisiana Street, Suite 1400

	 	Attention: Michelle Phillips
	Houston, TX 77002

	 	Telephone: 713-759-3475
	 

	 	Telecopier: 832-426-6023
	 

	 	Email: michellec_phillips@scotiacapital.com
	 
	 	 
	 

	 	Operations Contact:
	 

	 	Attention: Kathy Williams
	 

	 	Telephone: 416-649-4009
	 

	 	Telecopier: 212-225-5709
	 

	 	Email: kathy_williams@scotiacapital.com







150











 





SCHEDULE 2.21




REVERSE DUTCH AUCTION PROCEDURES



This Schedule 2.21 is intended to summarize certain basic terms of the reverse Dutch
auction procedures pursuant to and in accordance with the terms and conditions of Section
2.21 of the Credit Agreement, of which this Schedule 2.21 is a part. It is not
intended to be a definitive statement of all of the terms and conditions of a reverse Dutch
auction, the definitive terms and conditions for which shall be set forth in the applicable
offering document. None of the Administrative Agent, the Auction Manager, any Arranger or any of
their respective affiliates or any officers, directors, employees, agents or attorneys-in-fact of
such Persons (together with the Administrative Agent, each Arranger and their respective
affiliates, the “Related Person”) makes any recommendation pursuant to any offering document as to
whether or not any Lender should sell its Term Loans to the Borrower pursuant to any offering
documents, nor shall the decision by the Administrative Agent, the Auction Manager, any Arranger or
any other Related Person (or any of their affiliates) in its respective capacity as a Lender to
sell its Term Loans to the Borrower be deemed to constitute such a recommendation. Each Lender
should make its own decision on whether to sell any of its Term Loans and, if it decides to do so,
the principal amount of and price to be sought for such Term Loans. In addition, each Lender
should consult its own attorney, business advisor or tax advisor as to legal, business, tax and
related matters concerning each Auction and the relevant offering documents. Capitalized terms not
otherwise defined in this Schedule 2.21 have the meanings assigned to them in the Credit
Agreement.




     (a) Notice Procedures. In connection with each Auction, the Borrower will provide
notification to the Auction Manager for distribution to the Lenders of the Term Loans (each, an
“Auction Notice”). Each Auction Notice shall contain (i) the minimum principal amount
(calculated on the face amount thereof) of Term Loans that the Borrower offers to purchase in such
Auction (the “Auction Amount”), which shall be no less than $25,000,000 (unless another
amount is agreed to by the Administrative Agent); (ii) the range of discounts to par (the
“Discount Range”), expressed as a range of prices per $1,000 (in increments of $5), at
which the Borrower would be willing to purchase Term Loans in such Auction; and (iii) the date on
which such Auction will conclude, on which date Return Bids (as defined below) will be due by 1:00
p.m. (New York time) (as such date and time may be extended by the Auction Manager, such time the
“Expiration Time”). Such Expiration Time may be extended for a period not exceeding 3
Business Days upon notice by the Borrower to the Auction Manager received not less than 24 hours
before the original Expiration Time; provided that only one extension per offer shall be
permitted. An Auction shall be regarded as a “failed auction” in the event that either (x) the
Borrower withdraws such Auction in accordance with the terms hereof or (y) the Expiration Time
occurs with no Qualifying Bids (as defined below) having been received. In the event of a failed
auction, the Borrower shall not be permitted to deliver a new Auction Notice prior to the date
occurring 3 Business Days after such withdrawal or Expiration Time, as the case may be.
Notwithstanding anything to the contrary contained herein, the Borrower shall not initiate any
Auction by delivering an Auction Notice to the Auction Manager until after the conclusion (whether
successful or failed) of the previous Auction (if any), whether such conclusion occurs by
withdrawal of such previous Auction or the occurrence of the Expiration Time of such previous
Auction.



     (b) Reply Procedures. In connection with any Auction, each Lender of Term Loans
wishing to participate in such Auction shall, prior to the Expiration Time, provide the Auction
Manager with a notice of participation, in the form included in the respective offering document
(each, a “Return Bid”) which shall specify (i) a discount to par that must be expressed as
a price per $1,000 (in increments of $5) in principal amount of Term Loans (the “Reply
Price”) within the Discount Range and (ii) the principal amount of Term Loans, in an amount not
less than $1,000,000 or an integral multiple of $1,000 in excess thereof, that such Lender offers
for sale at its Reply Price (the “Reply Amount”). A Lender may submit a



 









 




Reply Amount that is less than the minimum amount and incremental amount requirements
described above only if the Reply Amount comprises the entire amount of the Term Loans of such
Tranche held by such Lender. Lenders may only submit one Return Bid per Auction but each Return
Bid may contain up to 3 component bids, each of which may result in a separate Qualifying Bid and
each of which will not be contingent on any other component bid submitted by such Lender resulting
in a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and
deliver, to be held by the Auction Manager, an assignment and acceptance in the form included in
the offering document (each, an “Auction Assignment and Assumption”). The Borrower will
not purchase any Term Loans at a price that is outside of the applicable Discount Range, nor will
any Return Bids (including any component bids specified therein) submitted at a price that is
outside such applicable Discount Range be considered in any calculation of the Applicable Threshold
Price.




     (c) Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by
the Auction Manager, the Auction Manager, in consultation with the Borrower, will calculate the
lowest purchase price (the “Applicable Threshold Price”) for such Auction within the
Discount Range for such Auction that will allow the Borrower to complete the Auction by purchasing
the full Auction Amount (or such lesser amount of Term Loans for which the Borrower has received
Qualifying Bids). The Borrower shall purchase Term Loans from each Lender whose Return Bid is
within the Discount Range and contains a Reply Price that is equal to or less than the Applicable
Threshold Price (each, a “Qualifying Bid”). All Term Loans included in Qualifying Bids
(including multiple component Qualifying Bids contained in a single Return Bid) received at a Reply
Price lower than the Applicable Threshold Price will be purchased at such applicable Reply Prices
and shall not be subject to proration.



     (d) Proration Procedures. All Term Loans offered in Return Bids (or, if applicable,
any component thereof) constituting Qualifying Bids at the Applicable Threshold Price will be
purchased at the Applicable Threshold Price; provided that if the aggregate principal
amount (calculated on the face amount thereof) of all Term Loans for which Qualifying Bids have
been submitted in any given Auction at the Applicable Threshold Price would exceed the remaining
portion of the Auction Amount (after deducting all Term Loans to be purchased at prices below the
Applicable Threshold Price), the Borrower shall purchase the Term Loans for which the Qualifying
Bids submitted were at the Applicable Threshold Price ratably based on the respective principal
amounts offered and in an aggregate amount equal to the amount necessary to complete the purchase
of the Auction Amount. No Return Bids or any component thereof will be accepted above the
Applicable Threshold Price (as defined below).



     (e) Notification Procedures. The Auction Manager will calculate the Applicable
Threshold Price and post the Applicable Threshold Price and proration factor onto an internet or
intranet site (including Intralinks®, SyndTrak Online, ClearPar® or any other
E-System) in accordance with the Auction Manager’s standard dissemination practices by 4:00 p.m.
New York time on the same Business Day as the date the Return Bids were due (as such due date may
be extended in accordance with this Schedule 2.21). The Auction Manager will insert the
principal amount of Term Loans to be assigned and the applicable settlement date into each
applicable Auction Assignment and Assumption received in connection with a Qualifying Bid. Upon
the request of the submitting Lender, the Auction Manager will promptly return any Auction
Assignment and Assumption received in connection with a Return Bid that is not a Qualifying Bid.



     (f) Auction Assignment and Assumption. Each Auction Notice and Auction Assignment and
Assumption shall contain the following representations and warranties by the Borrower:




	 	(i)	 	The conditions set forth in Section 2.21 of the Credit
Agreement have each been satisfied on and as of the date hereof, except to the
extent that such conditions refer to conditions that must be satisfied as of a
future date, in which case the




- 2 -









 






	 	 	 	Borrower must terminate any Auction if it fails to satisfy one of more of
the conditions which are required to be met at the time which otherwise
would have been the time of purchase of Term Loans pursuant to an Auction.
	 
	 	(ii)	 	The representations and warranties of the Borrower and each
other Loan Party contained in Article IV of the Credit Agreement or any
other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct in
all material respects (other than any representation or warranty that is
qualified by materiality or reference to Material Adverse Effect, which shall
be true and correct in all respects) on and as of the date hereof, except to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier
date, and except that for purposes hereof, the representations and warranties
contained in Section 4.4(a) of the Credit Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b)
of Section 6.1 of the Credit Agreement.





     (g) Additional Procedures. Once initiated by an Auction Notice, the Borrower may
withdraw an Auction only in the event that, (i) as of such time, no Qualifying Bid has been
received by the Auction Manager or (ii) the Borrower has failed to meet a condition set forth in
Section 2.21 of the Credit Agreement. Furthermore, in connection with any Auction, upon
submission by a Lender of a Return Bid, such Lender will not have any withdrawal rights. Any
Return Bid (including any component bid thereof) delivered to the Auction Manager may not be
modified, revoked, terminated or cancelled by a Lender. However, an Auction may become void if the
conditions to the purchase of Term Loans by the Borrower required by the terms and conditions of
Section 2.21 of the Credit Agreement are not met. The purchase price in respect of each
Qualifying Bid for which purchase by the Borrower is required in accordance with the foregoing
provisions shall be paid directly by the Borrower to the respective assigning Lender on a
settlement date as determined jointly by the Borrower and the Auction Manager (which shall be not
later than 10 Business Days after the date Return Bids are due). The Borrower shall execute each
applicable Auction Assignment and Assumption received in connection with a Qualifying Bid. All
questions as to the form of documents and validity and eligibility of Term Loans that are the
subject of an Auction will be determined by the Auction Manager, in consultation with the Borrower,
and their determination will be final and binding so long as such determination is not inconsistent
with the terms of Section 2.21 of the Credit Agreement or this Schedule 2.21. The
Auction Manager’s interpretation of the terms and conditions of the offering document, in
consultation with the Borrower, will be final and binding so long as such interpretation is not
inconsistent with the terms of Section 2.21 of the Credit Agreement or this Schedule
2.21. None of the Administrative Agent, the Auction Manager, any Joint Lead Arranger, any
other Related Person or any of their respective affiliates assumes any responsibility for the
accuracy or completeness of the information concerning the Borrower, the other Loan Parties, or any
of their affiliates (whether contained in an offering document or otherwise) or for any failure to
disclose events that may have occurred and may affect the significance or accuracy of such
information. This Schedule 2.21 shall not require the Borrower to initiate any Auction.




- 3 -











 





EXHIBIT A

TO

CREDIT AGREEMENT




FORM OF ASSIGNMENT




     This ASSIGNMENT, dated as of the Effective Date, is entered into between each Assignor and
each Assignee (each as defined below).




     The parties hereto hereby agree as follows:



	 	 	 

	Borrower:

	 	Alere Inc., a Delaware corporation (the “Borrower”)
	 
	 	 
	Administrative Agent:

	 	General Electric Capital Corporation, as
administrative agent and collateral agent for the
Lenders and L/C Issuers (in such capacity and
together with its successors and permitted assigns,
the “Administrative Agent”)
	 
	 	 
	Credit Agreement:

	 	Credit Agreement, dated as of June 30, 2011, among
the Borrower, the Lenders and L/C Issuers party
thereto and the Administrative Agent (as the same
may be amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”;
capitalized terms used herein without definition are
used as defined in the Credit Agreement)
	 
	 	 
	[Trade Date:

	 	_________, ____]
	 
	 	 
	Effective Date:

	 	_________, ____







A-1









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate amount	 	Aggregate amount	 	 
	 	 	 	 	 	 	of Commitments	 	of Commitments	 	 
	Assignor	 	Assignee	 	 	 	or principal	 	or principal	 	 
	(collectively, the	 	(collectively, the	 	 	 	amount of Loans	 	amount of Loans	 	Percentage
	“Assignors”)	 	“Assignees”)	 	Facility Assigned1	 	for all Lenders2	 	Assigned3	 	Assigned4
	[Name of Assignor]

	 	[Name of Assignee]

[Affiliate][Approved 

Fund] of [Name of 

Lender]
	 	 
	 	$____________
	 	$____________
	 	_.______%
	 
	 	 	 	 	 	 	 	 	 	 
	[Name of Assignor]

	 	[Name of Assignee]

[Affiliate][Approved 

Fund] of [Name of 

Lender]
	 	 	 	$____________
	 	$____________
	 	_.______%
	 
	 	 	 	 	 	 	 	 	 	 
	[Name of Assignor]

	 	[Name of Assignee]

[Affiliate][Approved 

Fund] of [Name of 

Lender]
	 	 	 	$____________
	 	$____________
	 	_.______%






[The Remainder of this Page Was Intentionally Left Blank]






 




			
	1	 	Fill in the appropriate defined term for the
Tranche of Loans and/or Commitments under the Credit Agreement that are being
assigned under this Assignment (e.g., “Revolving Credit Commitment”, “A Term
Loans”, etc).
	 
	2	 	In the case of the Revolving Credit
Commitment, including Revolving Loans and interests, participations and
obligations to participate in Letters of Credit and Swing Loans.
	 
	3	 	Amount to be adjusted by the counterparties
to take into account any payments or prepayments made between the Trade Date
and the Effective Date. The aggregate amounts are inserted for informational
purposes only to help in calculating the percentages assigned which,
themselves, are for informational purposes only.
	 
	4	 	Set forth, to at least 9 decimals, the
Assigned Interest as a percentage of the aggregate Commitment or Loans in the
respective Facility. This percentage is set forth for informational purposes
only and is not intended to be binding. The assignments are based on the
amounts assigned not on the percentages listed in this column.





ASSIGNMENT

FOR ALERE INC. CREDIT AGREEMENT






A-2









 








     Section 1. Assignment. Each Assignor hereby sells and assigns to the
Assignee set forth above opposite such Assignor, and such Assignee hereby purchases and assumes
from such Assignor, such Assignor’s rights and obligations in its capacity as Lender under the
Credit Agreement (including Liabilities owing to or by such Assignor thereunder) and the other Loan
Documents, in each case to the extent related to the amounts identified above opposite such
Assignor (such Assignor’s “Assigned Interest”).



     Section 2. Representations, Warranties and Covenants of Assignors. Each
Assignor severally but not jointly (a) represents and warrants to its corresponding Assignee and
the Administrative Agent that (i) it has full power and authority, and has taken all actions
necessary, for it to execute and deliver this Assignment and to consummate the transactions
contemplated hereby and (ii) it is the legal and beneficial owner of its Assigned Interest and that
such Assigned Interest is free and clear of any Lien and other adverse claims, (b) makes no other
representation or warranty and assumes no responsibility, including with respect to the aggregate
amount of the Facilities, the percentage of the Facilities represented by the amounts assigned, any
statements, representations and warranties made in or in connection with any Loan Document or any
other document or information furnished pursuant thereto, the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document or any document or
information provided in connection therewith and the existence, nature or value of any Collateral,
(c) assumes no responsibility (and makes no representation or warranty) with respect to the
financial condition of any Group Member or Loan Party or the performance or nonperformance by any
Loan Party of any obligation under any Loan Document or any document provided in connection
therewith and (d) attaches any Notes held by it evidencing at least in part the Assigned Interest
of such Assignor (or, if applicable, an affidavit of loss or similar affidavit therefor) and
requests that the Administrative Agent exchange such Notes for new Notes in accordance with
Section 2.14(e) of the Credit Agreement.



     Section 3. Representations, Warranties and Covenants of Assignees. Each
Assignee severally but not jointly (a) represents and warrants to its corresponding Assignor and
the Administrative Agent that (i) it has full power and authority, and has taken all actions
necessary, for such Assignee to execute and deliver this Assignment and to consummate the
transactions contemplated hereby, (ii) to the extent indicated above, is an Affiliate or an
Approved Fund of the Lender set forth above and (iii) it is sophisticated with respect to decisions
to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and
either such Assignee or the Person exercising discretion in making the decision for such assignment
is experienced in acquiring assets of such type, (b) appoints and authorizes the Administrative
Agent to take such action as administrative agent and collateral agent on its behalf and to
exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in
accordance with their terms all obligations that, by the terms of the Loan Documents, are required
to be performed by it as a Lender, (d) confirms it has received such documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter into this
Assignment and shall continue to make its own credit decisions in taking or not taking any action
under any Loan Document independently and without reliance upon any Secured Party and based on such
documents and information as it shall deem appropriate at the time, (e) acknowledges and agrees
that, as a Lender, it may receive material non-public information and confidential information
concerning the Loan Parties and their Affiliates and Securities and agrees to use such information
in accordance with Section 11.20 of the Credit Agreement, (f) specifies as its applicable
lending offices (and addresses for notices) the offices at the addresses set forth beneath its name
on the signature pages hereof, (g) shall pay to the Administrative Agent an assignment fee in the
amount of $3,500 to the extent such fee is required to be paid under



ASSIGNMENT

FOR ALERE INC. CREDIT AGREEMENT






A-3









 







Section 11.2(c) of the Credit Agreement and (h) to the extent required pursuant to
Section 2.17(f) of the Credit Agreement, attaches two completed originals of Forms W-8ECI,
W-8BEN or W-9.




     Section 4. Determination of Effective Date; Register. Following the due
execution and delivery of this Assignment by each Assignor, each Assignee and, to the extent
required by Section 11.2(b) of the Credit Agreement, the Borrower, this Assignment
(including its attachments) will be delivered to the Administrative Agent for its acceptance and
recording in the Register. The effective date of this Assignment (the “Effective Date”)
shall be the later of (i) the acceptance of this Assignment by the Administrative Agent and (ii)
the recording of this Assignment in the Register. The Administrative Agent shall insert the
Effective Date when known in the space provided therefor at the beginning of this Assignment.



     Section 5. Effect. As of the Effective Date, (a) each Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment, have the rights and
obligations of a Lender under the Credit Agreement and (b) each Assignor shall, to the extent
provided in this Assignment, relinquish its rights (except those surviving the termination of the
Commitments and payment in full of the Obligations) and be released from its obligations under the
Loan Documents other than those obligations relating to events and circumstances occurring prior to
the Effective Date.



     Section 6. Distribution of Payments. On and after the Effective Date, the
Administrative Agent shall make all payments under the Loan Documents in respect of each Assigned
Interest of any Assignor (a) in the case of amounts accrued to but excluding the Effective Date, to
such Assignor and (b) otherwise, to the corresponding Assignee.



     Section 7. Miscellaneous. This Assignment is a Loan Document and, as such, is
subject to certain provisions of the Credit Agreement, including Sections 1.5
(Interpretation), 11.14(a) (Submission to Jurisdiction) and 11.15
(Waiver of Jury Trial) thereof. On and after the Effective Date, this Assignment shall be
binding upon, and inure to the benefit of, the Assignors, Assignees, the Administrative Agent and
their Related Persons and their respective successors and assigns. THIS ASSIGNMENT SHALL BE
GOVERNED BY, AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
This Assignment may be executed in any number of counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart. Delivery of an executed
signature page of this Assignment by facsimile transmission or Electronic Transmission shall be as
effective as delivery of a manually executed counterpart of this Assignment.



[Signature Pages Follow]




ASSIGNMENT

FOR ALERE INC. CREDIT AGREEMENT








A-4









 








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



	 	 	 	 	 

	 	 	[NAME OF ASSIGNOR]
	 	 	as Assignor
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 	 	as Assignee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Lending Office [for Eurodollar Rate Loans]:
	 
	 	 	 	 
	 	 	[Insert Address (including contact name, fax number
and e-mail address)]
	 
	 	 	 	 
	 	 	Lending Office (and address for notices)
	 	 	for any other purpose:
	 
	 	 	 	 
	 	 	[Insert Address (including contact name, fax number
and e-mail address)]






[SIGNATURE PAGE FOR ASSIGNMENT FOR ALERE INC. CREDIT AGREEMENT]







 









 








ACCEPTED and AGREED

this __ day of ______ _____:




	 	 	 	 	 

	GENERAL ELECTRIC CAPITAL CORPORATION 

as Administrative Agent	 	 
	 
	 	 	 	 
	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[ALERE INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:]5	 	 
	 
	 	 	 	 
	[[NAME OF SWINGLINE LENDER]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[NAME OF EACH L/C ISSUER]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:]]6	 	 









 




			
	5	 	The consent of the Borrower is only required
to the extent provided by Section 11.2(b) of the Credit Agreement.
	 
	6	 	The consent of the Swingline Lender and each
L/C Issuer is only required to the extent provided in Section 11.2(b)
of the Credit Agreement.





[SIGNATURE PAGE FOR ASSIGNMENT FOR ALERE INC. CREDIT AGREEMENT]





 









 








EXHIBIT B-1

TO

CREDIT AGREEMENT




FORM OF A TERM LOAN NOTE




			
	 	 	 
	Lender: [NAME OF LENDER]
	 	New York, New York
	Principal Amount: $_______
	 	[_____], 2011
	 	 	 





     FOR VALUE RECEIVED, the undersigned, Alere Inc., a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of the Lender set forth above or its
registered assigns (the “Lender”) the Principal Amount set forth above, or, if less, the
aggregate unpaid principal amount of the A Term Loans (as defined in the Credit Agreement referred
to below) of the Lender to the Borrower, payable at such times and in such amounts as are specified
in the Credit Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of the A Term Loans from
the date made until such principal amount is paid in full, payable at such times and at such
interest rates as are specified in the Credit Agreement. Demand, diligence, presentment, protest
and notice of non-payment and protest are hereby waived by the Borrower.



     Both principal and interest are payable in Dollars to General Electric Capital Corporation, as
Administrative Agent, at _________________, in immediately available funds.



     This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement, dated as of June 30, 2011 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders and the L/C Issuers party thereto and General Electric Capital Corporation, as
administrative agent and collateral agent for the Lenders and L/C Issuers. Capitalized terms used
herein without definition are used as defined in the Credit Agreement.



     The Credit Agreement, among other things, (a) provides for the making of A Term Loans by the
Lender to the Borrower in an aggregate amount equal to the Principal Amount set forth above, the
indebtedness of the Borrower resulting from such A Term Loans being evidenced by this Note and (b)
contains provisions for acceleration of the maturity of the unpaid principal amount of this Note
upon the happening of certain stated events and also for prepayments on account of the principal
hereof prior to the maturity hereof upon the terms and conditions specified therein.



     This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject
to certain provisions of the Credit Agreement, including Sections 1.5
(Interpretation), 11.14(a) (Submission to Jurisdiction) and 11.15
(Waiver of Jury Trial) thereof.



     This Note is a registered obligation, transferable only upon notation in the Register, and no
assignment hereof shall be effective until recorded therein.



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



[Signature Pages Follow]




B-1-1









 





     IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its
duly authorized officer as of the day and year and at the place set forth above.



	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE FROM PROMISSORY NOTE OF ALERE INC.

FOR THE BENEFIT OF [NAME OF LENDER]]




 









 





EXHIBIT B-2

TO

CREDIT AGREEMENT




FORM OF B TERM LOAN NOTE



			
	 	 	 
	Lender: [NAME OF LENDER]
	 	New York, New York
	Principal Amount: $_______
	 	[_____], 2011
	 	 	 





     FOR VALUE RECEIVED, the undersigned, Alere Inc., a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of the Lender set forth above or its
registered assigns (the “Lender”) the Principal Amount set forth above, or, if less, the
aggregate unpaid principal amount of all the B Term Loans (as defined in the Credit Agreement
referred to below) of the Lender to the Borrower, payable at such times and in such amounts as are
specified in the Credit Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of the B Term Loans from
the date made until such principal amount is paid in full, payable at such times and at such
interest rates as are specified in the Credit Agreement. Demand, diligence, presentment, protest
and notice of non-payment and protest are hereby waived by the Borrower.



     Both principal and interest are payable in Dollars to General Electric Capital Corporation, as
Administrative Agent, at _________________, in immediately available funds.



     This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement, dated as of June 30, 2011 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders and the L/C Issuers party thereto and General Electric Capital Corporation, as
administrative agent and collateral agent for the Lenders and L/C Issuers. Capitalized terms used
herein without definition are used as defined in the Credit Agreement.



     The Credit Agreement, among other things, (a) provides for the making of B Term Loans by the
Lender to the Borrower in an aggregate amount equal to the Principal Amount set forth above, the
indebtedness of the Borrower resulting from such B Term Loans being evidenced by this Note and (b)
contains provisions for acceleration of the maturity of the unpaid principal amount of this Note
upon the happening of certain stated events and also for prepayments on account of the principal
hereof prior to the maturity hereof upon the terms and conditions specified therein.



     This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject
to certain provisions of the Credit Agreement, including Sections 1.5
(Interpretation), 11.14(a) (Submission to Jurisdiction) and 11.15
(Waiver of Jury Trial) thereof.



     This Note is a registered obligation, transferable only upon notation in the Register, and no
assignment hereof shall be effective until recorded therein.



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



[Signature Pages Follow]




B-2-1









 





     IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its
duly authorized officer as of the day and year and at the place set forth above.



	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE FROM PROMISSORY NOTE OF ALERE INC.

FOR THE BENEFIT OF [NAME OF LENDER]]




 









 





EXHIBIT B-3

TO

CREDIT AGREEMENT




FORM OF DELAYED-DRAW TERM LOAN NOTE




			
	 	 	 
	Lender: [NAME OF LENDER]
	 	New York, New York
	Principal Amount: $_______
	 	[_____], 2011
	 	 	 





     FOR VALUE RECEIVED, the undersigned, Alere Inc., a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of the Lender set forth above or its
registered assigns (the “Lender”) the Principal Amount set forth above, or, if less, the
aggregate unpaid principal amount of all the Delayed-Draw Term Loans (as defined in the Credit
Agreement referred to below) of the Lender to the Borrower, payable at such times and in such
amounts as are specified in the Credit Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of the Delayed-Draw Term
Loans from the date made until such principal amount is paid in full, payable at such times and at
such interest rates as are specified in the Credit Agreement. Demand, diligence, presentment,
protest and notice of non-payment and protest are hereby waived by the Borrower.



     Both principal and interest are payable in Dollars to General Electric Capital Corporation, as
Administrative Agent, at _________________, in immediately available funds.



     This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement, dated as of June 30, 2011 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders and the L/C Issuers party thereto and General Electric Capital Corporation, as
administrative agent and collateral agent for the Lenders and L/C Issuers. Capitalized terms used
herein without definition are used as defined in the Credit Agreement.



     The Credit Agreement, among other things, (a) provides for the making of Delayed-Draw Term
Loans by the Lender to the Borrower in an aggregate amount equal to the Principal Amount set forth
above, the indebtedness of the Borrower resulting from such Delayed-Draw Term Loans being evidenced
by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal
amount of this Note upon the happening of certain stated events and also for prepayments on account
of the principal hereof prior to the maturity hereof upon the terms and conditions specified
therein.



     This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject
to certain provisions of the Credit Agreement, including Sections 1.5
(Interpretation), 11.14(a) (Submission to Jurisdiction) and 11.15
(Waiver of Jury Trial) thereof.



     This Note is a registered obligation, transferable only upon notation in the Register, and no
assignment hereof shall be effective until recorded therein.



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



[Signature Pages Follow]




B-3-1









 





     IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its
duly authorized officer as of the day and year and at the place set forth above.



	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE FROM PROMISSORY NOTE OF ALERE INC.

FOR THE BENEFIT OF [NAME OF LENDER]]






 









 








Exhibit B-4

to

Credit Agreement




FORM OF INCREMENTAL TERM NOTE




			
	 	 	 
	Lender: [NAME OF LENDER]
	 	New York, New York
	Principal Amount: $_______
	 	[_____], 2011
	 	 	 





     FOR VALUE RECEIVED, the undersigned, Alere Inc., a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of the Lender set forth above or its
registered assigns (the “Lender”) on [______], 20__ (the “Incremental Term Loan
Maturity Date”) the Principal Amount set forth above, or, if less, the aggregate unpaid
principal amount of all [insert the applicable description of the respective Tranche of Incremental
Term Loans] (as defined in the Credit Agreement referred to below) of the Lender to the Borrower,
payable at such times and in such amounts as are specified in the Credit Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of each [Incremental Term
Loan] from the date made until such principal amount is paid in full, payable at such times and at
such interest rates as are specified in the Credit Agreement. Demand, diligence, presentment,
protest and notice of non-payment and protest are hereby waived by the Borrower.



     Both principal and interest are payable in Dollars to General Electric Capital Corporation, as
Administrative Agent, at _________________, in immediately available funds.



     This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement, dated as of June 30, 2011 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders and the L/C Issuers party thereto and General Electric Capital Corporation, as
administrative agent and collateral agent for the Lenders and L/C Issuers. Capitalized terms used
herein without definition are used as defined in the Credit Agreement.



     The Credit Agreement, among other things, (a) provides for the making of [Incremental Term
Loans] by the Lender to the Borrower in an aggregate amount equal to the Principal Amount set forth
above, the indebtedness of the Borrower resulting from such [Incremental Term Loans] being
evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid
principal amount of this Note upon the happening of certain stated events and also for prepayments
on account of the principal hereof prior to the maturity hereof upon the terms and conditions
specified therein.



     This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject
to certain provisions of the Credit Agreement, including Sections 1.5
(Interpretation), 11.14(a) (Submission to Jurisdiction) and 11.15
(Waiver of Jury Trial) thereof.



     This Note is a registered obligation, transferable only upon notation in the Register, and no
assignment hereof shall be effective until recorded therein.



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



B-4-1









 





     IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its duly
authorized officer as of the day and year and at the place set forth above.



	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE FROM PROMISSORY NOTE OF ALERE INC.

FOR THE BENEFIT OF [NAME OF LENDER]]









 









 








EXHIBIT B-5

TO

CREDIT AGREEMENT




FORM OF REVOLVING LOAN NOTE




			
	 	 	 
	Lender: [NAME OF LENDER]
	 	New York, New York
	Principal Amount: $_______
	 	___________, ____
	 	 	 





     FOR VALUE RECEIVED, the undersigned, Alere Inc., a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of the Lender set forth above or its
registered assigns (the “Lender”) the Principal Amount set forth above, or, if less, the
aggregate unpaid principal amount of all Revolving Loans (as defined in the Credit Agreement
referred to below) of the Lender to the Borrower, payable at such times and in such amounts as are
specified in the Credit Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan
from the date made until such principal amount is paid in full, payable at such times and at such
interest rates as are specified in the Credit Agreement. Demand, diligence, presentment, protest
and notice of non-payment and protest are hereby waived by the Borrower.



     Both principal and interest are payable in Dollars to General Electric Capital Corporation, as
Administrative Agent, at _________________, in immediately available funds.



     This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement, dated as of June 30, 2011 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
Lenders and the L/C Issuers party thereto and General Electric Capital Corporation, as
administrative agent and collateral agent for the Lenders and L/C Issuers. Capitalized terms used
herein without definition are used as defined in the Credit Agreement.



     The Credit Agreement, among other things, (a) provides for the making of Revolving Loans by
the Lender to the Borrower in an aggregate amount not to exceed at any time outstanding the
Principal Amount set forth above, the indebtedness of the Borrower resulting from such Revolving
Loans being evidenced by this Note and (b) contains provisions for acceleration of the maturity of
the unpaid principal amount of this Note upon the happening of certain stated events and also for
prepayments on account of the principal hereof prior to the maturity hereof upon the terms and
conditions specified therein.



     This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject
to certain provisions of the Credit Agreement, including Sections 1.5
(Interpretation), 11.14(a) (Submission to Jurisdiction) and 11.15
(Waiver of Jury Trial) thereof.



     This Note is a registered obligation, transferable only upon notation in the Register, and no
assignment hereof shall be effective until recorded therein.



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



[Signature Pages Follow]




B-5-1









 





     IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its
duly authorized officer as of the day and year and at the place set forth above.



	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE FROM PROMISSORY NOTE OF ALERE INC.

FOR THE BENEFIT OF [NAME OF LENDER]]




 









 





EXHIBIT C

TO

CREDIT AGREEMENT




FORM OF NOTICE OF BORROWING




GENERAL ELECTRIC CAPITAL CORPORATION

     as Administrative Agent under the

     Credit Agreement referred to below




___________,____




Attention:





     Re: ALERE INC. (the “Borrower”)



     Reference is made to the Credit Agreement, dated as of June 30, 2011 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, the Lenders and L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for such Lenders and L/C Issuers.
Capitalized terms used herein without definition are used as defined in the Credit Agreement.



     The Borrower hereby gives you irrevocable notice, pursuant to Section 2.2 of the
Credit Agreement of its request of a Borrowing (the “Proposed Borrowing”) under the Credit
Agreement and, in that connection, sets forth the following information:




     A. The date of the Proposed Borrowing is __________, ____ (the “Funding Date”).




     B. The aggregate principal amount of Revolving Loans requested is $_______, of which
$________ consists of Base Rate Loans and $________ consists of Eurodollar Rate Loans having
an initial Interest Period of ______ months.




     C. The aggregate principal amount of [A Term Loans][B Term Loans][Delayed-Draw Term
Loans][Designate Tranche of Incremental Term Loans] requested is $_______, of which
$________ consists of Base Rate Loans and $________ consists of Eurodollar Rate Loans having
an initial Interest Period of ______ months.



     The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the Funding Date, both before and after giving effect to the Proposed Borrowing
and any other Loan to be made or Letter of Credit to be Issued on or before the Funding Date:




     (i) the representations and warranties set forth in Article IV of the Credit
Agreement and elsewhere in the Loan Documents are true and correct in all material respects
(or in all respects to the extent that any such representation or warranty is qualified by
materiality or Material Adverse Effect), as though made on and as of such Funding Date,
except to the extent such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties were true and correct as of such
earlier date; and




     (ii) no Default or Event of Default is continuing.



C-1









 





	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO NOTICE OF BORROWING DATED _________ __, ____]









 









 








EXHIBIT D

TO

CREDIT AGREEMENT




FORM OF SWING LOAN REQUEST




GENERAL ELECTRIC CAPITAL CORPORATION,

      as Administrative Agent under the

      Credit Agreement referred to below




Attention:




_________ __, ____





     Re: ALERE INC. (the “Borrower”)



     Reference is made to the Credit Agreement, dated as of June 30, 2011 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, the Lenders and L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for the Lenders and L/C Issuers.
Capitalized terms used herein and not otherwise defined herein are used herein as defined in the
Credit Agreement.



     The Borrower hereby gives you irrevocable notice pursuant to Section 2.3 of the Credit
Agreement that it requests Swing Loans under the Credit Agreement (the “Proposed Advance”)
and, in that connection, sets for the following information:




     A. The date of the Proposed Advance is __________, ____ (the “Funding Date”).




     B. The aggregate principal amount of Swing Loan requested is $________.



     The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the Funding Date, both before and after giving effect to the Proposed Advance
and any other Loan to be made or Letter of Credit to be Issued on or before the Funding Date:




     (i) the representations and warranties set forth in Article IV of the Credit
Agreement and elsewhere in the Loan Documents are true and correct in all material respects
(or in all respects to the extent that any such representation or warranty is qualified by
materiality or Material Adverse Effect) with the same effect as though made on and as of
such Funding Date, except to the extent such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties were true and correct
as of such earlier date and




     (ii) no Default or Event of Default is continuing.



D-1









 





	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO NOTICE OF BORROWING DATED _________ __, ____]





 









 





EXHIBIT E

TO

CREDIT AGREEMENT




FORM OF LETTER OF CREDIT REQUEST




[NAME OF L/C ISSUER], as L/C Issuer

under the Credit Agreement referred to below




Attention:




_________ __, ____




     Re: ALERE INC. (the “Borrower”)



     Reference is made to the Credit Agreement, dated as of June 30, 2011 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, the Lenders and L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for the Lenders and L/C Issuers.
Capitalized terms used herein without definition are used as defined in the Credit Agreement.



     The Borrower hereby gives you notice, irrevocably, pursuant to Section 2.4(b) of the
Credit Agreement, of its request for your Issuance of a Letter of Credit, in the form attached
hereto, for the benefit of [Name of Beneficiary], in the amount of $________, to be issued on
________, ____ (the “Issue Date”) with an expiration date of _________, ___.



     The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the Issue Date, both before and after giving effect to the Issuance of the
Letter of Credit requested above and any Loan to be made or any other Letter of Credit to be Issued
on or before the Issue Date:




     (i) the representations and warranties set forth in Article IV of the Credit
Agreement and elsewhere in the Loan Documents are true and correct in all material respects
(or in all respects to the extent that any such representation or warranty is qualified by
materiality or Material Adverse Effect), with the same effect as though made on and as of
such Issue Date, except to the extent such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties were true and correct
as of such earlier date and




     (ii) no Default or Event of Default is continuing.



E-1









 





     Copies of all documentation with respect to the supported transaction are attached
hereto.



	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO LETTER OF CREDIT REQUEST DATED _________ __, ____]









 









 








EXHIBIT F

TO

CREDIT AGREEMENT




FORM OF NOTICE OF CONVERSION OR CONTINUATION




GENERAL ELECTRIC CAPITAL CORPORATION

      as Administrative Agent under the

      Credit Agreement referred to below




_________ __, ____

Attention:





     Re: ALERE INC. (the “Borrower”)



     Reference is made to the Credit Agreement, dated as of June 30, 2011 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, the Lenders and L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for the Lenders and L/C Issuers.
Capitalized terms used herein and not otherwise defined herein are used herein as defined in the
Credit Agreement.



     The Borrower hereby gives you irrevocable notice, pursuant to Section 2.10 of the
Credit Agreement of its request for the following:




     (i) a continuation, on ________, ____, as Eurodollar Rate Loans having an Interest
Period of ___ months of [A Term Loans][B Term Loans][Delayed-Draw Term Loans][Designate
Tranche of Incremental Term Loans][Revolving Loans] in an aggregate outstanding principal
amount of $____________ having an Interest Period ending on the proposed date for such
continuation;




     (ii) a conversion, on ________, ____, to Eurodollar Rate Loans having an Interest
Period of ___ months of [A Term Loans][B Term Loans][Delayed-Draw Term Loans][Designate
Tranche of Incremental Term Loans][Revolving Loans] in an aggregate outstanding principal
amount of $_________; and




     (iii) a conversion, on ________, ____, to Base Rate Loans, of [A Term Loans][B Term
Loans][Delayed-Draw Term Loans][Designate Tranche of Incremental Term Loans][Revolving
Loans] in an aggregate outstanding principal amount of $________.



F-1









 





     In connection herewith, the undersigned hereby certifies that no Default or Event of Default
is continuing on the date hereof, both before and after giving effect to any Loan to be made or
Letter of Credit to be Issued on or before any date for any proposed conversion or continuation set
forth above (it being understood that no conversion or continuation requested herein shall
constitute the making of any Loan).



	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE
PAGE TO NOTICE OF BORROWING DATED _________ __, ____]