EX-10.1






Exhibit 10.1




EXECUTION VERSION




—



AMENDED AND RESTATED CREDIT AGREEMENT




dated as of




October 30, 2006




between




TELEFLEX INCORPORATED




and




The LENDERS Party Hereto




and




JPMORGAN CHASE BANK, N.A.,




as Administrative Agent














JPMORGAN SECURITIES INC.




and




BANC OF AMERICA SECURITIES LLC,




as Joint Lead Arrangers and Joint Bookrunners




BANK OF AMERICA, N.A.,




as Syndication Agent




and




HSBC BANK USA, NATIONAL ASSOCIATION,

PNC BANK, NATIONAL ASSOCIATION,

WACHOVIA BANK, NATIONAL ASSOCIATION

as Documentation Agents




—





1



TABLE OF CONTENTS




Page



ARTICLE I





DEFINITIONS




	 	 	 	SECTION 1.01. Defined Terms






	 	 	 	SECTION 1.02. Classification of Loans and Borrowings






	 	 	 	SECTION 1.03. Terms Generally






	 	 	 	SECTION 1.04. Accounting Terms; GAAP






	 	 	 	SECTION 1.05. Currencies; Currency Equivalents





ARTICLE II





THE CREDITS




	 	 	 	SECTION 2.01. The Commitments






	 	 	 	SECTION 2.02. Loans and Borrowings.






	 	 	 	SECTION 2.03. Requests for Syndicated Borrowings.






	 	 	 	SECTION 2.04. Competitive Bid Procedure.






	 	 	 	SECTION 2.05. Swingline Loans.






	 	 	 	SECTION 2.06. Letters of Credit.






	 	 	 	SECTION 2.07. Funding of Borrowings.






	 	 	 	SECTION 2.08. Interest Elections.






	 	 	 	SECTION 2.09. Changes of Commitments.






	 	 	 	SECTION 2.10. Repayment of Loans; Evidence of Debt.






	 	 	 	SECTION 2.11. Prepayment of Loans.






	 	 	 	SECTION 2.12. Fees.






	 	 	 	SECTION 2.13. Interest.






	 	 	 	SECTION 2.14. Alternate Rate of Interest






	 	 	 	SECTION 2.15. Increased Costs.






	 	 	 	SECTION 2.16. Break Funding Payments






	 	 	 	SECTION 2.17. Taxes.






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






	 	 	 	SECTION 2.19. Mitigation Obligations; Replacement of Lenders.





ARTICLE III





REPRESENTATIONS AND WARRANTIES




	 	 	 	SECTION 3.01. Organization; Powers






	 	 	 	SECTION 3.02. Authorization; Enforceability






	 	 	 	SECTION 3.03. Governmental Approvals; No Conflicts






	 	 	 	SECTION 3.04. Financial Condition; No Material Adverse Change.






	 	 	 	SECTION 3.05. Properties.






	 	 	 	SECTION 3.06. Litigation and Environmental Matters.






	 	 	 	SECTION 3.07. Compliance with Laws and Agreements






	 	 	 	SECTION 3.08. Investment Company Status






	 	 	 	SECTION 3.09. Taxes






	 	 	 	SECTION 3.10. ERISA






	 	 	 	SECTION 3.11. Disclosure






	 	 	 	SECTION 3.12. Use of Credit






	 	 	 	SECTION 3.13. Subsidiaries and Investments.





ARTICLE IV





CONDITIONS




	 	 	 	SECTION 4.01. Effective Date






	 	 	 	SECTION 4.02. Each Credit Event





ARTICLE V





AFFIRMATIVE COVENANTS




	 	 	 	SECTION 5.01. Financial Statements and Other Information






	 	 	 	SECTION 5.02. Notices of Material Events






	 	 	 	SECTION 5.03. Existence; Conduct of Business






	 	 	 	SECTION 5.04. Payment of Obligations






	 	 	 	SECTION 5.05. Maintenance of Properties and Insurance






	 	 	 	SECTION 5.06. Books and Records; Inspection Rights






	 	 	 	SECTION 5.07. Compliance with Laws and Agreements






	 	 	 	SECTION 5.08. Use of Loan Proceeds and Letters of Credit





ARTICLE VI





NEGATIVE COVENANTS




	 	 	 	SECTION 6.01. Subsidiary Indebtedness






	 	 	 	SECTION 6.02. Liens






	 	 	 	SECTION 6.03. Fundamental Changes






	 	 	 	SECTION 6.04. Dispositions of Property






	 	 	 	SECTION 6.05. Acquisitions






	 	 	 	SECTION 6.06. Restricted Payments






	 	 	 	SECTION 6.07. Transactions with Affiliates






	 	 	 	SECTION 6.08. Restrictive Agreements






	 	 	 	SECTION 6.09. Certain Financial Covenants






	 	 	 	SECTION 6.10. Lines of Business





ARTICLE VII





EVENTS OF DEFAULT



ARTICLE VIII





THE ADMINISTRATIVE AGENT



ARTICLE IX





MISCELLANEOUS




	 	 	 	SECTION 9.01. Notices






	 	 	 	SECTION 9.02. Waivers; Amendments.






	 	 	 	SECTION 9.03. Expenses; Indemnity; Damage Waiver.






	 	 	 	SECTION 9.04. Successors and Assigns.






	 	 	 	SECTION 9.05. Survival






	 	 	 	SECTION 9.06. Counterparts; Integration; Effectiveness






	 	 	 	SECTION 9.07. Severability






	 	 	 	SECTION 9.08. Right of Setoff






	 	 	 	SECTION 9.09. Governing Law; Jurisdiction; Etc.






	 	 	 	SECTION 9.10. WAIVER OF JURY TRIAL






	 	 	 	SECTION 9.11. Judgment Currency






	 	 	 	SECTION 9.12. Headings






	 	 	 	SECTION 9.13. Treatment of Certain Information; Confidentiality.






	 	 	 	SECTION 9.14. Patriot Act





SCHEDULES



	 	 	 
	SCHEDULE 2.01Commitments

SCHEDULE 3.06(a)Litigation

	 	



	 
	 	 
	SCHEDULE 3.06(b)Environmental Matters

	 
	 	 
	SCHEDULE 3.13Subsidiaries and Investments

	 
	 	 
	SCHEDULE 6.01Existing Indebtedness

	 
	 	 
	SCHEDULE 6.02Existing Liens

	 	

	 
	 	 
	SCHEDULE 6.08Existing Restrictive Agreements

	 
	 	 
	ANNEXES

	 	

	 

	 	

	 
	 	 
	ANNEX I

	 	MCR Cost
	 
	 	 
	EXHIBITS

	 	

	 

	 	

	 
	 	 
	EXHIBIT A

EXHIBIT B

EXHIBIT C

	 	Form of Assignment and Assumption

Form of Opinion of Counsel to the Borrower

Form of Opinion of Special New York Counsel to JPMCB






2



AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 30, 2006, between TELEFLEX
INCORPORATED, the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.



The Borrower (as hereinafter defined), certain of the Lenders and JPMorgan Chase Bank (now
known as JPMorgan Chase Bank, N.A.), as the “Administrative Agent” thereunder are parties to the
Credit Agreement dated as of July 22, 2004 (as amended and in effect immediately prior to the
effectiveness of this Agreement, the “Existing Credit Agreement”).



The Borrower has requested certain amendments to the provisions of the Existing Credit
Agreement, including the extension of the availability of the commitments thereunder, and the
Lenders are willing to make such amendments on the terms and conditions set forth herein, and, in
that connection, the parties hereto hereby agree to amend and restate in its entirety the Existing
Credit Agreement, effective as of the Effective Date (as defined below), as follows:



ARTICLE I




DEFINITIONS




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



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



“Acquired Entity” means any business, assets or Person subject to an Acquisition.



“Acquisition” means any transaction, or any series of related transactions,
consummated after the date hereof, by which the Borrower and/or any of its Subsidiaries
(a) acquires any going business or all or substantially all of the assets of any corporation,
limited liability company, partnership, joint venture or other entity or any division of any
corporation, limited liability company, partnership, joint venture or other entity or the right to
use or manage or otherwise exploit any such business or assets, whether through purchase or lease
of assets, merger or otherwise or (b) directly or indirectly acquires ownership or Control of at
least a majority (in number of votes) of Capital Stock which has ordinary voting power for the
election of directors or other managers of any corporation, limited liability company, partnership,
joint venture or other entity.



“Adjusted LIBO Rate” means, for the Interest Period for any Syndicated Eurocurrency
Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate
for such Interest Period, provided that such interest rate shall be adjusted, if
applicable, as reasonably determined by the Administrative Agent in accordance with Annex I, to
reflect the MCR Cost.



“Administrative Agent” means JPMCB, in its capacity as administrative agent for the
Lenders hereunder.



“Administrative Agent’s Account” means, for each Currency, an account in respect of
such Currency designated by the Administrative Agent in a notice to the Borrower and the Lenders.



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



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



“Agreed Foreign Currency” means, at any time, any of Canadian Dollars, euro, Sterling,
Swedish Krona and Yen and, with the agreement of each Lender, any other Foreign Currency, so long
as, in respect of any such specified Currency or other Foreign Currency, at such time (a) such
Currency is dealt with in the London interbank deposit market, (b) such Currency is freely
transferable and convertible into Dollars in the London foreign exchange market and (c) no central
bank or other governmental authorization in the country of issue of such Currency is required to
permit use of such Currency by any Lender for making any Loan hereunder and/or to permit the
Borrower to borrow and repay the principal thereof and to pay the interest thereon, unless such
authorization has been obtained and is in full force and effect.



“Alternate Base Rate” means, for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate for such day
plus 0.50%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.



“Applicable Percentage” means, with respect to any Lender, the percentage of the
aggregate amount of the Commitments represented by such Lender’s Commitment. If the Commitments
have terminated or expired, the Applicable Percentages shall be determined based upon the aggregate
principal amount of the Syndicated Loans held by the Lenders or, if no Syndicated Loans are
outstanding, the Commitments most recently in effect (giving effect to any assignments).



“Applicable Rate” means, for any day, with respect to any ABR Loan (including any
Swingline Loan) or Syndicated Eurocurrency Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below under the caption
“ABR Spread”, “Eurocurrency Spread” or “Facility Fee Rate”, respectively, based upon the Leverage
Ratio as of the most recent determination date; provided that the “Applicable Rate” shall
be the applicable rate per annum set forth below in Category 4 from the Effective Date until the
next change in the Applicable Rate in accordance with the immediately succeeding sentence:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Leverage	 	ABR	 	Euro-currency Spread	 	Facility Fee Rate
	 	 	Ratio	 	Spread	 	 	 	 	 	 	 	 
	Category 1:
	 	Greater than 3.00 to 1
	 	 	0	%	 	 	0.60	%	 	 	0.15	%
	Category 2:
	 	Greater than 2.50 to 1 and
	 	 	0	%	 	 	0.50	%	 	 	0.125	%
	 
	 	Less than or equal to 3.0 to 1
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3:
	 	Greater than 2.0 to 1 and Less
	 	 	0	%	 	 	0.40	%	 	 	0.10	%
	 
	 	than or equal to 2.50 to 1
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 4:
	 	Greater than 1.50 to 1 and
	 	 	0	%	 	 	0.36	%	 	 	0.09	%
	 
	 	Less than or equal to 2.0 to 1
	 	 	—	 	 	 	—	 	 	 	—	 
	Category 5:
	 	Less than or equal to 1.50 to 1
	 	 	0	%	 	 	0.32	%	 	 	0.08	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end of each
fiscal quarter of the Borrower based upon the Borrower’s consolidated financial statements
delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period commencing on and
including the date three Business Days after delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that the Leverage Ratio
shall be deemed to be in Category 1 (A) at any time that an Event of Default has occurred and is
continuing and (B) if the Borrower fails to deliver the consolidated financial statements required
to be delivered by it pursuant to Section 5.01(a) or (b), during the period from the expiration of
the time for delivery thereof until such consolidated financial statements are delivered.



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



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



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



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



“Borrower” means Teleflex Incorporated, a Delaware corporation.



“Borrowing” means (a) all Syndicated ABR Loans made, converted or continued on the
same date, (b) all Syndicated Eurocurrency Loans or Competitive Loans of the same Class, Type and
Currency that have the same Interest Period (or any single Competitive Loan that does not have the
same Interest Period as any other Competitive Loan of the same Type and Currency) or (c) a
Swingline Loan.



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



“Business Day” means any day (a) that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed, (b) if such
day relates to a Competitive Bid Request or Competitive Bid for a Competitive Eurocurrency Loan, or
to a borrowing of, a payment or prepayment of principal of or interest on, a continuation or
conversion of or into, or the Interest Period for, a Eurocurrency Borrowing, or to a notice by the
Borrower with respect to any such borrowing, payment, prepayment, continuation, conversion, or
Interest Period, that is also a day on which dealings in deposits denominated in the Currency of
such Borrowing are carried out in the London interbank market and (c) if such day relates to a
Competitive Bid Request or Competitive Bid for a Competitive Eurocurrency Loan denominated in any
Foreign Currency, or to a borrowing or continuation of, a payment or prepayment of principal of or
interest on, or the Interest Period for, any Borrowing denominated in any Foreign Currency, or to a
notice by the Borrower with respect to any such borrowing, continuation, payment, prepayment or
Interest Period, that is also a day on which commercial banks and the London foreign exchange
market settle payments in the Principal Financial Center for such Foreign Currency.



“Canadian Dollars” and “Cdn $” means the lawful currency of Canada.



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



“Capital Stock” means (a) in the case of a corporation, corporate stock,
(b) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock,
(c) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests, and (d) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.



“Change of Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of shares representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed
by directors so nominated; or (c) the acquisition of direct or indirect Control of the Borrower by
any Person or group.



“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or
(c) compliance by any Lender or any Issuing Lender (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender’s or such Issuing Lender’s holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.



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



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



“Commitment” means, with respect to each Lender, the commitment of such Lender to make
Syndicated Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Credit Exposure
hereunder, as such commitment may be (a) reduced or increased from time to time pursuant to
Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender’s Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed
its Commitment, as applicable. The aggregate amount of the Lenders’ Commitments is $400,000,000 as
of the Effective Date.



“Commitment Termination Date” means October 30, 2011.



“Competitive”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans constituting such Borrowing, are made pursuant to Section 2.04.



“Competitive Bid” means an offer by a Lender to make a Competitive Loan in accordance
with Section 2.04.



“Competitive Bid Rate” means, with respect to any Competitive Bid, the Margin or the
Fixed Rate, as applicable, offered by the Lender making such Competitive Bid.



“Competitive Bid Request” means a request by the Borrower for Competitive Bids in
accordance with Section 2.04.



“Consolidated EBITDA” means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP), of
the following: (a) Consolidated Net Income for such period plus (b) without duplication
and to the extent reflected as a charge in the income statement for such period, the sum of
(i) income tax expense, (ii) Consolidated Interest Expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Loans), (iii) depreciation and amortization expense, including
amortization of intangibles (including, but not limited to, goodwill) and (iv) other non-recurring
non-cash charges, provided that with respect to any such period in which any Person
(x) consolidates with or merges with the Borrower or any Subsidiary, or conveys, transfers or
leases all or substantially all of its assets in a single transaction or series of transactions to
the Borrower or any Subsidiary, and concurrently therewith becomes a Subsidiary or (y) ceases to be
a Subsidiary during such period, EBITDA for such period shall be calculated on a pro forma basis so
as to give effect to such event as of the first day of such period.



“Consolidated Interest Coverage Ratio” means, as at any date, the ratio of
(a) Consolidated EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Consolidated Interest Expense for such period.



“Consolidated Interest Expense” means, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP),
of the following: (a) all interest in respect of Indebtedness (including the interest component of
any payments in respect of Capital Lease Obligations and any implied interest component in
connection with the Receivables Securitization Program) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount payable (or
minus the net amount receivable) under Swap Agreements relating to interest during such
period (whether or not actually paid or received during such period), provided that with
respect to any such period in which any Person (x) consolidates with or merges with the Borrower or
any Subsidiary, or conveys, transfers or leases all or substantially all of its assets in a single
transaction or series of transactions to the Borrower or any Subsidiary, and concurrently therewith
becomes a Subsidiary or (y) ceases to be a Subsidiary during such period, Consolidated Interest
Expense for such period shall be calculated on a pro forma basis so as to give effect to such event
as of the first day of such period.



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



“Consolidated Net Income” means, for any period, the consolidated net income (or loss)
of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Loan Document) or any Requirement of Law, in each case
applicable to such Subsidiary.



“Consolidated Net Worth” means, at any date, the stockholders’ equity of the Borrower
and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP.



“Consolidated Total Assets” means, at any time, the aggregate amount of all assets of
the Borrower and its Subsidiaries at such time, as determined on a consolidated basis in accordance
with GAAP.



“Consolidated Total Capitalization” means, at any time, the sum of (i) Consolidated
Net Worth at such time and (ii) Consolidated Total Indebtedness at such time.



“Consolidated Total Indebtedness” means, at any date, the aggregate principal amount
of all Indebtedness of the Borrower and its Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP.



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



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



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



“Currency” means Dollars or any Foreign Currency.



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



“Disclosed Matters” means the actions, suits and proceedings disclosed in
Schedule 3.06(a) and the environmental matters disclosed in Schedule 3.06(b).



“Disposition” means any sale, assignment, transfer or other disposition of any
property (whether now owned or hereafter acquired) by the Borrower or any of its Subsidiaries to
any Person, including, without limitation, any sale of an equity interest in any Subsidiary. The
terms “Dispose” and “Disposed of” shall have correlative meanings.



“Dollar Equivalent” means, with respect to any Borrowing denominated in any Foreign
Currency, the amount of Dollars that would be required to purchase the amount of the Foreign
Currency of such Borrowing on the date two Business Days prior to the date of such Borrowing (or,
in the case of any redenomination under the last sentence of Section 2.18(a), on the date of
redenomination therein referred to), based upon the spot selling rate at which the Administrative
Agent offers to sell such Foreign Currency for Dollars in the London foreign exchange market at
approximately 11:00 a.m., London time, for delivery two Business Days later.



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



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



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



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.



“Equity Rights” means, with respect to any Person, any subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including any shareholders’ or
voting trust agreements) for the issuance, sale, registration or voting of, or securities
convertible into any additional shares of Capital Stock of any class of such Person.



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



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



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



“euro” means the single currency of Participating Member States of the European Union.



“Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans constituting such Borrowing, are bearing interest at a rate determined by
reference to (a) in the case of a Syndicated Loan or a Syndicated Borrowing, the Adjusted LIBO
Rate, or (b) in the case of a Competitive Loan or a Competitive Borrowing, the LIBO Rate.



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



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement or is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with
Section 2.17(e), except to the extent that such Foreign Lender’s assignor (if any) was entitled, at
the time of assignment, to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.17(a).



“Existing Credit Agreement” has the meaning assigned to such term in the recitals
hereto.



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



“Financial Officer” means the chief financial officer or treasurer of the Borrower.



“Fixed Rate” means, with respect to any Competitive Loan (other than a Competitive
Eurocurrency Loan), the fixed rate of interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid. When used in reference to any Loan or Borrowing,
“Fixed Rate” refers to whether such Loan, or the Loans constituting such Borrowing, are
Competitive Loans bearing interest at a Fixed Rate.



“Foreign Currency” means at any time any Currency other than Dollars.



“Foreign Currency Equivalent” means, with respect to any amount in Dollars, the amount
of any Foreign Currency that could be purchased with such amount of Dollars using the reciprocal of
the foreign exchange rate(s) specified in the definition of the term “Dollar Equivalent”, as
determined by the Administrative Agent.



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



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



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



“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



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



“Indemnified Taxes” means Taxes other than Excluded Taxes.



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



“Interest Payment Date” means (a) with respect to any Syndicated ABR Loan, each
Quarterly Date, (b) with respect to any Eurocurrency Loan, the last day of each Interest Period
therefor and, in the case of any Interest Period for a Eurocurrency Loan of more than three months’
duration, each successive date of such Interest Period that occurs at three-month intervals after
the first day of such Interest Period, (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period therefor and, in the case of any Interest Period for a Fixed Rate Loan of more than
90 days’ duration (unless otherwise specified in the applicable Competitive Bid Request), each
successive date of such Interest Period that occurs at 90-day intervals after the first day of such
Interest Period, and any other dates that are specified in the applicable Competitive Bid Request
as Interest Payment Dates with respect to such Loan and (d) with respect to any Swingline Loan, the
day that such Loan is required to be repaid.



“Interest Period” means:




(a) for any Syndicated Eurocurrency Loan or Borrowing, the period commencing on the
date of such Loan or Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months or (if available to all of the Lenders)
nine or twelve months thereafter or, with respect to such portion of any Syndicated
Eurocurrency Loan or Borrowing denominated in a Foreign Currency that is scheduled to be
repaid on the Commitment Termination Date, a period of less than one month’s duration
commencing on the date of such Loan or Borrowing and ending on the Commitment Termination
Date, as specified in the applicable Borrowing Request or Interest Election Request;




(b) for any Competitive Eurocurrency Loan or Borrowing, the period commencing on the
date of such Loan or Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months or (if available to all of the Lenders)
nine or twelve months thereafter or, with respect to such portion of any Competitive
Eurocurrency Loan or Borrowing denominated in a Foreign Currency that is scheduled to be
repaid on the Commitment Termination Date a period of less than one month’s duration
commencing on the date of such Loan or Borrowing and ending on the Commitment Termination
Date, as specified in the applicable Competitive Bid Request; and




(c) for any Fixed Rate Loan or Borrowing, the period (which shall not be less than
seven days or more than 360 days) commencing on the date of such Loan or Borrowing and ending
on the date specified in the applicable Competitive Bid Request;



provided that (i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurocurrency Borrowing only, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding Business Day, and
(ii) any Interest Period pertaining to a Eurocurrency Borrowing (other than an Interest Period
pertaining to a Eurocurrency Borrowing denominated in a Foreign Currency that ends on the
Commitment Termination Date that is permitted to be of less than one month’s duration as provided
in this definition) that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Loan initially shall be the date on which such Loan is made and, in
the case of a Syndicated Loan, thereafter shall be the effective date of the most recent conversion
or continuation of such Loan, and the date of a Syndicated Borrowing comprising Loans that have
been converted or continued shall be the effective date of the most recent conversion or
continuation of such Loans.



“Investment” means, for any Person: (a) the ownership of Capital Stock, bonds, notes,
debentures, partnership or other ownership interests or other securities of any other Person;
(b) any deposit with, or advance, loan or other extension of credit to, any other Person including
the purchase of property from another Person subject to an understanding or agreement, contingent
or otherwise, to resell such property to such Person, but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days arising in connection with the sale of
(i) inventory or supplies by such Person in the ordinary course of business or (ii) accounts
receivable in connection with any Receivables Securitization Program; (c) any Guarantee of, or
other contingent obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended to such Person; or
(d) any Swap Agreement, provided that “Investment” shall not include any short-term
investments of a liquid nature.



“Issuing Lender” means each of JPMCB, Wachovia Bank, National Association and each
other Lender designated by the Borrower as an “Issuing Lender” hereunder that has agreed to such
designation (and is reasonably acceptable to the Administrative Agent), each in its capacity as an
issuer of one or more Letters of Credit hereunder, and its successors in such capacity as provided
in Section 2.06(j), in each case so long as such Person shall remain an Issuing Lender hereunder.
Any Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Lender, in which case the term “Issuing Lender” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.



“JPMCB” means JPMorgan Chase Bank, N.A.



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



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



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



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



“Letter of Credit Documents” means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such obligations, each as the same
may be modified and supplemented and in effect from time to time.



“LIBO Rate” means, for the Interest Period for any Eurocurrency Borrowing denominated
in any Currency, the rate appearing on the Screen at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as LIBOR for deposits denominated
in such Currency with a maturity comparable to such Interest Period. In the event that such rate
is not available on the Screen at such time for any reason, then the LIBO Rate for such Interest
Period shall be the rate at which deposits in such Currency in the amount of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.



“LIBOR” means, for any Currency, the rate at which deposits denominated in such
Currency are offered to leading banks in the London interbank market.



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



“Loan Documents” means, collectively, this Agreement and the Letter of Credit
Documents.



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



“Local Time” means, with respect to any Loan denominated in or any payment to be made
in any Currency, the local time in the Principal Financial Center for the Currency in which such
Loan is denominated or such payment is to be made.



“Margin” means, with respect to any Competitive Loan bearing interest at a rate based
on the LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from the LIBO
Rate to determine the rate of interest applicable to such Loan, as specified by the Lender making
such Loan in its related Competitive Bid.



“Margin Stock” means “margin stock” within the meaning of Regulations T, U and X of
the Board.



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



“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $20,000,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of any
Person in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that such Person would be required to pay if such Swap Agreement
were terminated at such time.



“MCR Cost” means, with respect to any Lender, the cost imputed to such Lender of
compliance with the Mandatory Cost Rate requirements of the Bank of England during the relevant
period, determined in accordance with Annex I.



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



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



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



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



“Permitted Encumbrances” means:




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




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




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




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




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




(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any Subsidiary;



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



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



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



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



“Principal Financial Center” means, in the case of any Currency, the principal
financial center where such Currency is cleared and settled, as determined by the Administrative
Agent.



“Quarterly Dates” means the last Business Day of March, June, September and December
in each year, the first of which shall be the first such day after the date hereof.



“Receivables Securitization Program” has the meaning set forth in Section 6.02(e).



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



“Regulation D”, “Regulation T”, “Regulation U” and “Regulation
X” means, respectively, Regulation D, Regulation T, Regulation U and Regulation X of the Board
of Governors of the Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.



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



“Required Lenders” means, at any time, Lenders having Credit Exposures and unused
Commitments representing more than 50% of the sum of the total Credit Exposures and unused
Commitments at such time (provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding Competitive Loans
of the Lenders shall be included in their respective Credit Exposures in determining the Required
Lenders).



“Requirement of Law” means, as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.



“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any shares of any class of Capital Stock of the
Borrower or any of its Subsidiaries, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such shares of Capital Stock of the
Borrower or any Equity Rights with respect to any such shares of Capital Stock of the Borrower.



“Screen” means, for any Currency, the relevant display page for LIBOR for such
Currency (as determined by the Administrative Agent) on the Telerate Service; provided
that, if the Administrative Agent determines that there is no such relevant display page for LIBOR
for such Currency, “Screen” shall mean the relevant display page for LIBOR for such Currency (as
determined by the Administrative Agent) on the Reuter Monitor Money Rates Service.



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



“Statutory Reserve Rate” means, for the Interest Period for any Syndicated
Eurocurrency Borrowing, a fraction (expressed as a decimal), the numerator of which is the number
one and the denominator of which is the number one minus the arithmetic mean, taken over
each day in such Interest Period, of the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a decimal established by
the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred
to as “Eurocurrency liabilities” in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any reserve percentage.



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



“Subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent. Unless otherwise specified, “Subsidiary”
means a Subsidiary of the Borrower.



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



“Swedish Krona” means the lawful currency of the Kingdom of Sweden.



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



“Swingline Lender” means JPMCB, in its capacity as lender of Swingline Loans
hereunder.



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



“Syndicated”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans constituting such Borrowing, are made pursuant to Section 2.01.



“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.



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



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



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



“Yen” means the lawful currency of Japan.



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



SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, if the Borrower notifies the Administrative Agent that
the Borrower requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such provision amended in
accordance herewith. To enable the ready and consistent determination of compliance with the
covenants set forth in Article VI, the Borrower will not change the last day of its fiscal year and
fiscal quarters in effect on the date hereof.



SECTION 1.05. Currencies; Currency Equivalents.



(a) At any time, any reference in the definition of the term “Agreed Foreign Currency” or in
any other provision of this Agreement to the Currency of any particular nation means the lawful
currency of such nation at such time whether or not the name of such Currency is the same as it was
on the date hereof. Except as provided in the last sentence of Section 2.18(a), for purposes of
determining (i) whether the amount of any Borrowing, together with all other Borrowings then
outstanding or to be borrowed at the same time as such Borrowing, would exceed the aggregate amount
of the Commitments, (ii) the aggregate unutilized amount of the Commitments and (iii) the
outstanding aggregate principal amount of Borrowings, the outstanding principal amount of any
Borrowing that is denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent
of the amount of the Foreign Currency of such Borrowing determined as of the date of such Borrowing
(determined in accordance with the last sentence of the definition of the term “Interest Period”).



(b) Wherever in this Agreement in connection with a Borrowing or Loan an amount, such as a
required minimum or multiple amount, is expressed in Dollars, but such Borrowing or Loan is
denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of
such Dollar amount (rounded to the nearest 1,000 units of such Foreign Currency).



(c) Each obligation hereunder of any party hereto that is denominated in a Currency of a
country that is not a Participating Member State on the date hereof shall, effective from the date
on which such country becomes a Participating Member State, be redenominated in euro in accordance
with the legislation of the European Union applicable to the European Monetary Union;
provided that, if and to the extent that any such legislation provides that any such
obligation of any such party payable within such Participating Member State by crediting an account
of the creditor can be paid by the debtor either in euro or such Currency, such party shall be
entitled to pay or repay such amount either in euro or in such Currency. If the basis of accrual
of interest or fees expressed in this Agreement with respect to an Agreed Foreign Currency of any
country that becomes a Participating Member State after the date on which such currency becomes an
Agreed Foreign Currency shall be inconsistent with any convention or practice in the interbank
market for the basis of accrual of interest or fees in respect of the euro, such convention or
practice shall replace such expressed basis effective as of and from the date on which such country
becomes a Participating Member State; provided that, with respect to any Borrowing
denominated in such currency that is outstanding immediately prior to such date, such replacement
shall take effect at the end of the Interest Period therefor. Without prejudice to the respective
liabilities of the Borrower to the Lenders and of the Lenders to the Borrower under or pursuant to
this Agreement, each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time reasonably specify in writing to the
Borrower to be necessary or appropriate to reflect the introduction or changeover to the euro in
any country that becomes a Participating Member State after the date hereof.



ARTICLE II




THE CREDITS




SECTION 2.01. The Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Syndicated Loans in Dollars or in any Agreed Foreign Currency to the Borrower
from time to time during the Availability Period in an aggregate principal amount that will not
result in (a) such Lender’s Credit Exposure exceeding such Lender’s Commitment, (b) the sum of the
total Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans
exceeding the aggregate amount of the Commitments or (c) the aggregate principal amount of
Syndicated Loans denominated in the Agreed Foreign Currencies exceeding $200,000,000. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Syndicated Loans.



SECTION 2.02. Loans and Borrowings.



(a) Obligations of Lenders. Each Syndicated Loan shall be made as part of a
Borrowing consisting of Loans of the same Currency and Type made by the Lenders ratably in
accordance with their respective Commitments. Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.04. The failure of any Lender to make any Loan required
to be made by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments and Competitive Bids of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.



(b) Type of Loans. Subject to Section 2.14, (i) each Syndicated Borrowing shall be
constituted entirely of ABR Loans or of Eurocurrency Loans denominated in a single Currency as the
Borrower may request in accordance herewith, and (ii) each Competitive Borrowing shall be
constituted entirely of Eurocurrency Loans or Fixed Rate Loans denominated in a single Currency as
the Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each
ABR Loan (whether a Syndicated Loan or a Swingline Loan) shall be denominated in Dollars. Each
Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this
Agreement.



(c) Minimum Amounts; Limitation on Number of Borrowings. Each Syndicated
Eurocurrency Borrowing shall be in an aggregate amount of $5,000,000 or a larger multiple of
$1,000,000, or, in the case of a Syndicated Eurocurrency Borrowing denominated in a Foreign
Currency, in an aggregate amount as agreed by the Administrative Agent. Each Syndicated
ABR Borrowing shall be in an aggregate amount equal to $5,000,000 or a larger multiple of
$1,000,000; provided that a Syndicated ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the aggregate amount of the Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(f). Each
Competitive Borrowing shall be in an aggregate amount equal to $10,000,000 or a larger multiple of
$1,000,000. Each Swingline Loan shall be in an amount equal to $2,500,000 or a larger multiple of
$500,000. Borrowings of more than one Class, Currency and Type may be outstanding at the same
time; provided that there shall not at any time be more than a total of twelve Syndicated
Eurocurrency Borrowings outstanding.



(d) Limitations on Interest Periods. Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request (or to elect to convert to or continue as
a Syndicated Eurocurrency Borrowing) any Borrowing if the Interest Period requested therefor would
end after the Commitment Termination Date.



SECTION 2.03. Requests for Syndicated Borrowings.



(a) Notice by the Borrower. To request a Syndicated Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (i) in the case of a Syndicated
Eurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing, (ii) in the case of a Syndicated
Eurocurrency Borrowing denominated in a Foreign Currency, not later than 11:00 a.m., London time,
three Business Days before the date of the proposed Borrowing or (iii) in the case of a Syndicated
ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing; provided that any such notice of a Syndicated ABR Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(f) may be given not
later than 10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower.



(b) Content of Borrowing Requests. Each telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:




(i) the aggregate amount and Currency of the requested Borrowing;




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




(iii) in the case of a Syndicated Borrowing denominated in Dollars, whether such
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;




(iv) in the case of a Syndicated Eurocurrency Borrowing, the Interest Period therefor,
which shall be a period contemplated by the definition of the term “Interest Period” and
permitted under Section 2.02(d); and




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



(c) Notice by the Administrative Agent to the Lenders. Promptly following receipt of
a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.



(d) Failure to Elect. If no election as to the Currency of a Syndicated Borrowing is
specified, then the requested Syndicated Borrowing shall be denominated in Dollars. If no election
as to the Type of a Syndicated Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing unless an Agreed Foreign Currency has been specified, in which case the requested
Syndicated Borrowing shall be a Eurocurrency Borrowing denominated in such Agreed Foreign Currency.
If no Interest Period is specified with respect to any requested Syndicated Eurocurrency
Borrowing, (i) if the Currency specified for such Borrowing is Dollars (or if no Currency has been
so specified), the requested Borrowing shall be made instead as a Syndicated ABR Borrowing, and
(ii) if the Currency specified for such Borrowing is an Agreed Foreign Currency, the Borrower shall
be deemed to have selected an Interest Period of one month’s duration.



SECTION 2.04. Competitive Bid Procedure.



(a) Requests for Bids by the Borrower. Subject to the terms and conditions set forth
herein, from time to time during the Availability Period the Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and borrow Competitive Loans
denominated in Dollars or in any Foreign Currency; provided that (i) the aggregate
principal amount of all outstanding Competitive Loans at any time shall not exceed $100,000,000 and
(ii) the sum of the total Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans at any time shall not exceed the aggregate amount of the Commitments.
To request Competitive Bids, the Borrower shall notify the Administrative Agent of such request by
telephone, in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time,
four Business Days (or, in the case of a Eurocurrency Borrowing denominated in a Foreign Currency,
11:00 a.m., London time, five Business Days) before the date of the proposed Borrowing and, in the
case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one Business Day
(or, in the case of a Fixed Rate Borrowing denominated in a Foreign Currency, 10:00 a.m., London
time, four Business Days) before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) three Competitive Bid Requests on the same day, but a
Competitive Bid Request shall not be made within five Business Days after the date of any previous
Competitive Bid Request, unless any and all such previous Competitive Bid Requests shall have been
withdrawn or all Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written Competitive Bid Request shall
specify the following information in compliance with Section 2.02:




(i) the aggregate amount and Currency of the requested Borrowing;




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




(iii) the maturity date of such Borrowing, which date shall not be less than seven days
or more than 360 days after the date of such Borrowing;




(iv) whether such Borrowing is to be a Eurocurrency Borrowing or a Fixed Rate
Borrowing;




(v) the Interest Period for such Borrowing, which shall be a period contemplated by the
definition of the term “Interest Period” and permitted under Section 2.02(d); and




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



Promptly following receipt of a Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the
Lenders to submit Competitive Bids.



(b) Making of Bids by Lenders. Each Lender may (but shall not have any obligation
to) make one or more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the Administrative Agent and must be
received by the Administrative Agent by telecopy, in the case of a Competitive Eurocurrency
Borrowing, not later than 9:30 a.m., New York City time, three Business Days (or, in the case of a
Competitive Eurocurrency Borrowing denominated in a Foreign Currency, 9:30 a.m., London time, four
Business Days) before the proposed date of such Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time (or, in the case of a Fixed Rate Borrowing
denominated in a Foreign Currency, 9:30 a.m., London time), on the proposed date of such Borrowing.
Competitive Bids that do not conform substantially to the form approved by the Administrative
Agent may be rejected by the Administrative Agent, and the Administrative Agent shall notify the
applicable Lender of such rejection as promptly as practicable. Each Competitive Bid shall specify
(i) the principal amount (which shall be $5,000,000 or a larger multiple of $1,000,000 and which
may equal the entire principal amount of the Competitive Borrowing requested by the Borrower) of
the Competitive Loan or Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Competitive Bid Rates at which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period for each such Loan and the last day thereof.



(c) Notification of Bids by Administrative Agent. The Administrative Agent shall
promptly notify the Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.



(d) Acceptance of Bids by the Borrower. Subject only to the provisions of this
paragraph, the Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by the Administrative
Agent, whether and to what extent it has decided to accept or reject each Competitive Bid, in the
case of a Competitive Eurocurrency Borrowing, not later than 10:30 a.m., New York City time, three
Business Days (or, in the case of a Eurocurrency Borrowing denominated in a Foreign Currency,
2:00 p.m., London time, four Business Days) before the date of the proposed Competitive Borrowing,
and in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City time (or, in
the case of a Fixed Rate Borrowing denominated in a Foreign Currency, 10:30 a.m., London time), on
the proposed date of the Competitive Borrowing; provided that (i) the failure of the
Borrower to give such notice shall be deemed to be a rejection of each Competitive Bid, (ii) the
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid Rate if the
Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate amount
of the Competitive Bids accepted by the Borrower shall not exceed the aggregate amount of the
requested Competitive Borrowing specified in the related Competitive Bid Request, (iv) to the
extent necessary to comply with clause (iii) of this proviso, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Bid, and (v) except pursuant to clause (iv) of this proviso, no
Competitive Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in a
principal amount of $5,000,000 or a larger multiple of $1,000,000; provided further
that if a Competitive Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) of the first proviso of this paragraph, such Competitive Loan may be in an amount of
$1,000,000 or any multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to such
clause (iv) the amounts shall be rounded to multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be irrevocable.



(e) Notification of Acceptances by the Administrative Agent. The Administrative
Agent shall promptly notify each bidding Lender by telecopy whether or not its Competitive Bid has
been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each successful
bidder will thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.



(f) Bids by the Administrative Agent. If the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower at least one quarter of an hour earlier than the time by which the other Lenders
are required to submit their Competitive Bids to the Administrative Agent pursuant to paragraph (b)
of this Section.



SECTION 2.05. Swingline Loans.



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



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



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



SECTION 2.06. Letters of Credit.



(a) General. Subject to the terms and conditions set forth herein, in addition to
the Loans provided for in Section 2.01, the Borrower may request any Issuing Lender to issue, at
any time and from time to time during the Availability Period, Letters of Credit denominated in
Dollars or in any Agreed Foreign Currency for its own account in such form as is acceptable to such
Issuing Lender in its reasonable determination. Each Letter of Credit issued under the Existing
Credit Agreement and outstanding as of the Effective Date shall be automatically continued
hereunder, and as of the Effective Date each Lender shall have a participation in each such Letter
of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. Letters of Credit issued hereunder shall constitute utilization
of the Commitments.



(b) Notice of Issuance, Amendment, Renewal or Extension. To request the issuance of
a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the respective Issuing Lender) to the relevant Issuing Lender
and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the amount and
Currency of such Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the respective Issuing Lender, the Borrower also shall submit a letter of credit
application on such Issuing Lender’s standard form in connection with any request for a Letter of
Credit. In the event of any inconsistency between the terms and conditions of this Agreement and
the terms and conditions of any form of letter of credit application or other agreement submitted
by the Borrower to, or entered into by the Borrower with, an Issuing Lender relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.



(c) Limitations on Amounts. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the
applicable Account Party shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the aggregate LC Exposure of the Issuing Lenders
(determined for these purposes without giving effect to the participations therein of the Lenders
pursuant to paragraph (e) of this Section) shall not exceed $50,000,000 and (ii) the sum of the
total Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans
shall not exceed the aggregate amount of the Commitments.



(d) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date twelve months after the date of the issuance of such Letter
of Credit (or, in the case of any renewal or extension thereof, twelve months after the
then-current expiration date of such Letter of Credit, so long as such renewal or extension occurs
within three months of such then-current expiration date) and (ii) the date that is five Business
Days prior to the Commitment Termination Date.



(e) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) by any Issuing Lender, and without any further
action on the part of such Issuing Lender or the Lenders, such Issuing Lender hereby grants to each
Lender, and each Lender hereby acquires from such Issuing Lender, a participation in such Letter of
Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments.



In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for account of the respective Issuing
Lender, such Lender’s Applicable Percentage of each LC Disbursement made by an Issuing Lender
promptly upon the request of such Issuing Lender at any time from the time of such LC Disbursement
until such LC Disbursement is reimbursed by the Borrower or at any time after any reimbursement
payment is required to be refunded to the Borrower for any reason. Such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be
made in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and
Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the respective Issuing Lender the
amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent
of any payment from the Borrower pursuant to the next following paragraph, the Administrative Agent
shall distribute such payment to the respective Issuing Lender or, to the extent that the Lenders
have made payments pursuant to this paragraph to reimburse such Issuing Lender, then to such
Lenders and such Issuing Lender as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse an Issuing Lender for any LC Disbursement shall not
constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such
LC Disbursement.



(f) Reimbursement. If an Issuing Lender shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower shall reimburse such Issuing Lender in respect of such
LC Disbursement by paying to the Administrative Agent an amount in Dollars equal to such
LC Disbursement (or, in the case of any LC Disbursement made in a Currency other than Dollars in
respect of a Letter of Credit denominated in an Agreed Foreign Currency, the Dollar Equivalent of
such LC Disbursement) not later than 12:00 noon, New York City time, on (i) the Business Day that
the Borrower receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time, provided
that if such LC Disbursement is not less than (x) $5,000,000 in the case of a Syndicated ABR
Borrowing and (y) $2,500,000 in the case of a Swingline Loan, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.05 that such
payment be financed with a Syndicated ABR Borrowing in Dollars or a Swingline Loan in an equivalent
amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be
discharged and replaced by the resulting Syndicated ABR Borrowing or Swingline Loan.



If the Borrower fails to make such payment when due, the Administrative Agent shall notify
each Lender of the applicable LC Disbursement (or the Dollar Equivalent thereof, as applicable),
the payment then due from the Borrower in respect thereof and such Lender’s Applicable Percentage
thereof.



(g) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (f) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit, or any term or provision therein, (ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by the respective
Issuing Lender under a Letter of Credit against presentation of a draft or other document that does
not comply strictly with the terms of such Letter of Credit, and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of the Borrower’s obligations
hereunder.



Neither the Administrative Agent, the Lenders nor any Issuing Lender, nor any of their Related
Parties, shall have any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit by the respective Issuing Lender or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the respective Issuing Lender;
provided that the foregoing shall not be construed to excuse an Issuing Lender from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by such Issuing Lender’s gross negligence or willful
misconduct when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree that:




(i) an Issuing Lender may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit without responsibility for
further investigation, regardless of any notice or information to the contrary, and may make
payment upon presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit, provided that each Lender and the
Borrower agree that no Issuing Lender shall have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the terms of
the applicable Letter of Credit) or ascertain or inquire as to the validity or accuracy of
any such document or the authority of the person or entity executing or delivering same;




(ii) an Issuing Lender shall have the right, in its sole discretion, to decline to
accept such documents and to make such payment if such documents are not in strict compliance
with the terms of such Letter of Credit; and




(iii) this sentence shall establish the standard of care to be exercised by an Issuing
Lender when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted
by applicable law, any standard of care inconsistent with the foregoing).



Without limiting the foregoing, no Issuing Lender shall be liable, in the absence of its own gross
negligence or willful misconduct, for any action taken or not taken by it at the request of the
Required Lenders or the Administrative Agent.



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



(i) Interim Interest. If the Issuing Lender for any Letter of Credit shall make any
LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest in Dollars, for each
day from and including the date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement as provided in paragraph (f) of this Section, at the rate
per annum then applicable to Syndicated ABR Loans; provided that if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, then
Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for account of
such Issuing Lender, except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (f) of this Section to reimburse such Issuing Lender shall be for account of
such Lender to the extent of such payment.



(j) Additional Issuing Lenders; Termination of Issuing Lenders. An Issuing Lender
may be added, or an existing Issuing Lender may be terminated, under this Agreement at any time by
written agreement between the Borrower, the Administrative Agent and the relevant Issuing Lender.
The Administrative Agent shall notify the Lenders of any such addition or termination. At the time
any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for
account of the Issuing Lender being terminated pursuant to Section 2.12(b). From and after the
effective date of any such addition, the new Issuing Lender shall have all the rights and
obligations of an Issuing Lender under this Agreement with respect to Letters of Credit to be
issued thereafter. After the termination of an Issuing Lender hereunder, the terminated Issuing
Lender shall remain a party hereto and shall continue to have all the rights and obligations of an
Issuing Lender under this Agreement with respect to any outstanding Letters of Credit issued by it
prior to such termination, but shall not be required to issue any new Letters of Credit or to renew
or extend any such outstanding Letters of Credit.



(k) Cash Collateralization. If either (i) an Event of Default shall occur and be
continuing and the Borrower receives notice from the Administrative Agent or the Required Lenders
(or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing more
than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph or (ii) the Borrower shall be required to provide cover for LC Exposure pursuant to
Section 2.11, the Borrower shall immediately deposit into an account established and maintained on
the books and records of the Administrative Agent, which account may be a “securities account”
(within the meaning of Section 8-501 of the Uniform Commercial Code as in effect in the State of
New York), in the name of the Administrative Agent and for the benefit of the Lenders, an amount in
cash in Dollars equal to (x) in the case of an Event of Default, the LC Exposure as of such date
plus any accrued and unpaid interest thereon plus 5% of the LC Exposure as of such
date with respect to Letters of Credit denominated in any Foreign Currency and (y) in the case of
cover pursuant to Section 2.11, the amount required under Section 2.11; provided that the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent as collateral for the
LC Exposure under this Agreement, and for this purpose the Borrower hereby grants a security
interest to the Administrative Agent for the benefit of the Lenders in such collateral account and
in any financial assets (as defined in the Uniform Commercial Code) or other property held therein.



SECTION 2.07. Funding of Borrowings.



(a) Funding by Lenders. Each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, Local
Time, to the account of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided in
Section 2.05. The Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower designated by the
Borrower in the applicable Borrowing Request or Competitive Bid Request; provided that
Syndicated ABR Borrowings made to finance the reimbursement of an LC Disbursement as provided in
Section 2.06(f) shall be remitted by the Administrative Agent to the respective Issuing Lender.



(b) Presumption by the Administrative Agent. Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.



SECTION 2.08. Interest Elections.



(a) Elections by the Borrower for Syndicated Borrowings. The Loans constituting each
Syndicated Borrowing initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Syndicated Eurocurrency Borrowing, shall have the Interest Period specified
in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a
Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and, in
the case of a Syndicated Eurocurrency Borrowing, may elect the Interest Period therefor, all as
provided in this Section; provided that (i) a Syndicated Borrowing denominated in one
Currency may not be continued as, or converted to, a Syndicated Borrowing in a different Currency,
(ii) no Syndicated Eurocurrency Borrowing denominated in a Foreign Currency may be continued if,
after giving effect thereto, the sum of the Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans would exceed the aggregate Commitments, and (iii) a
Syndicated Eurocurrency Borrowing denominated in a Foreign Currency may not be converted to a
Borrowing of a different Type. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans constituting such Borrowing, and the Loans constituting each
such portion shall be considered a separate Borrowing. This Section shall not apply to Competitive
Borrowings or Swingline Borrowings, which may not be converted or continued.



(b) Notice of Elections. To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were requesting a Syndicated Borrowing
of the Type resulting from such election to be made on the effective date of such election. Each
such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.



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




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




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




(iii) whether, in the case of a Borrowing denominated in Dollars, the resulting
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and




(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period
therefor after giving effect to such election, which shall be a period contemplated by the
definition of the term “Interest Period” and permitted under Section 2.02(d).



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



(e) Failure to Elect; Events of Default. If the Borrower fails to deliver a timely
and complete Interest Election Request with respect to a Syndicated Eurocurrency Borrowing prior to
the end of the Interest Period therefor, then, unless such Borrowing is repaid as provided herein,
(i) if such Borrowing is denominated in Dollars, at the end of such Interest Period such Borrowing
shall be converted to a Syndicated ABR Borrowing, and (ii) if such Borrowing is denominated in a
Foreign Currency, the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and
is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (A) no outstanding Syndicated
Borrowing denominated in Dollars may be converted to or continued as a Syndicated Eurocurrency
Borrowing, (B) unless repaid, each Syndicated Eurocurrency Borrowing denominated in Dollars shall
be converted to a Syndicated ABR Borrowing at the end of the Interest Period therefor and (C) no
outstanding Syndicated Eurocurrency Borrowing denominated in a Foreign Currency may have an
Interest Period of more than one month’s duration.



SECTION 2.09. Changes of Commitments.



(a) Scheduled Termination. Unless previously terminated, the Commitments shall
terminate on the Commitment Termination Date.



(b) Voluntary Termination or Reduction. The Borrower may at any time terminate, or
from time to time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is $5,000,000 or a larger multiple of $1,000,000 and
(ii) the Borrower shall not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Syndicated Loans in accordance with Section 2.11, the sum of the total
Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans would
exceed the aggregate amount of the Commitments. The Borrower shall notify the Administrative Agent
of any election to terminate or reduce the Commitments under this paragraph at least three Business
Days prior to the effective date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied.



(c) Effect of Termination or Reduction. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.



(d) Commitment Increases. The Borrower may, at any time by notice to the
Administrative Agent, propose an increase in the aggregate amount of the Commitments hereunder
(each such proposed increase being a “Commitment Increase”) either by having an existing
Lender increase its Commitment then in effect (each an “Increasing Lender”) or by adding as
a new Lender with a new Commitment hereunder any Person which is not then a Lender (each an
“Assuming Lender”) in each case with the approval of the Administrative Agent (which shall
not be unreasonably withheld), which notice shall specify the name of each Increasing Lender and/or
Assuming Lender, as applicable, the amount of the Commitment Increase and the portion thereof being
assumed by each such Increasing Lender or Assuming Lender, and the date on which such Commitment
Increase is to be effective (the “Commitment Increase Date”) (which shall be a Business Day
at least three Business Days after delivery of such notice and 30 days prior to the Commitment
Termination Date); provided that:




(i) the minimum amount of the increase of the Commitment of any Increasing
Lender, and the minimum amount of the Commitment of any Assuming Lender, as part of
any Commitment Increase shall be $10,000,000 or a larger multiple of $1,000,000;




(ii) the aggregate amount of the Commitment Increases under this Section 2.09(d)
shall not exceed $200,000,000;




(iii) no Default shall have occurred and be continuing on the relevant
Commitment Increase Date or shall result from any Commitment Increase; and




(iv) the representations and warranties of the Borrower set forth in this
Agreement shall be true and correct on and as of the relevant Commitment Increase Date
as if made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific date).



Each Commitment Increase (and the increase of the Commitment of each Increasing Lender and/or
the new Commitment of each Assuming Lender, as applicable, resulting therefrom) shall become
effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on
or prior to 11:00 a.m., New York City time, on such Commitment Increase Date, of (A) a certificate
of a duly authorized officer of the Borrower stating that the conditions with respect to such
Commitment Increase under this paragraph have been satisfied and (B) an agreement, in form and
substance reasonably satisfactory to the Borrower and the Administrative Agent, pursuant to which,
effective as of such Commitment Increase Date, the Commitment of each such Increasing Lender shall
be increased and/or each such Assuming Lender shall undertake a Commitment, duly executed by such
Increasing Lender or Assuming Lender, as the case may be, and the Borrower and acknowledged by the
Administrative Agent. Upon the Administrative Agent’s receipt of a fully executed agreement from
each Increasing Lender and/or Assuming Lender referred to in clause (B) above, together with the
certificate referred to in clause (A) above, the Administrative Agent shall record the information
contained in each such agreement in the Register and give prompt notice of the relevant Commitment
Increase to the Borrower and the Lenders (including, if applicable, each Assuming Lender). On each
Commitment Increase Date, in the event Syndicated Loans are then outstanding, (i) each relevant
Increasing Lender and Assuming Lender shall make available to the Administrative Agent such amounts
in immediately available funds as the Administrative Agent shall determine, for the benefit of the
other relevant Lenders, as being required in order to cause, after giving effect to such increase
and the application of such amounts to make payments to such other relevant Lenders, the Syndicated
Loans to be held ratably by all Lenders in accordance with their respective Commitments, (ii) the
Borrower shall be deemed to have prepaid and reborrowed all outstanding Syndicated Loans as of such
Commitment Increase Date (with such borrowing to consist of the Type of Loans, with related
Interest Periods if applicable, specified in a notice delivered by the Borrower in accordance with
the requirements of Section 2.03) and (iii) the Borrower shall pay to the Lenders the amounts, if
any, payable under Section 2.14 as a result of such prepayment. In no event shall any Lender be
obligated to increase its Commitment hereunder.



SECTION 2.10. Repayment of Loans; Evidence of Debt.



(a) Repayment. The Borrower hereby unconditionally promises to pay the Loans as
follows:




(i) to the Administrative Agent for account of the Lenders the outstanding principal
amount of the Syndicated Loans on the Commitment Termination Date,




(ii) to the Administrative Agent for account of the respective Lender the then unpaid
principal amount of each Competitive Loan of such Lender on the last day of the Interest
Period therefor, and




(iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan
on the earlier of the Commitment Termination Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at least two Business
Days after such Swingline Loan is made; provided that on each date that a Syndicated
Borrowing or Competitive Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.



(b) Manner of Payment. Prior to any repayment or prepayment of any Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be paid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not later than
11:00 a.m., New York City time, three Business Days before the scheduled date of such repayment;
provided that each repayment of Borrowings shall be applied to repay any outstanding
ABR Borrowings before any other Borrowings. If the Borrower fails to make a timely selection of
the Borrowing or Borrowings to be repaid or prepaid, such payment shall be applied, first, to pay
any outstanding ABR Borrowings and, second, to other Borrowings in the order of the remaining
duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest
Period to be repaid first), and for these purposes, Competitive Loans shall be deemed to be in the
same Class as Syndicated Loans. Each payment of a Syndicated Borrowing shall be applied ratably to
the Loans included in such Borrowing.



(c) Maintenance of Records by Lenders. Each Lender shall maintain in accordance with
its usual practice records evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts and Currency of principal and interest
payable and paid to such Lender from time to time hereunder.



(d) Maintenance of Records by the Administrative Agent. The Administrative Agent
shall maintain records in which it shall record (i) the amount and Currency of each Loan made
hereunder, the Class and Type thereof and each Interest Period therefor, (ii) the amount and
Currency of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount and Currency of any sum received by the
Administrative Agent hereunder for account of the Lenders and each Lender’s share thereof.



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



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



SECTION 2.11. Prepayment of Loans.



(a) Optional Prepayments and Minimum Amounts. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part, without premium or
penalty, subject to the requirements of this Section and to the payment of amounts, if any, payable
under Section 2.16 in connection with such prepayment; provided that the Borrower shall not
have the right to prepay any Competitive Loan without the prior consent of the Lender thereof. Any
prepayment pursuant to this Section shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof then
outstanding.



(b) Mandatory Prepayments in respect of Currency Fluctuations. On each Quarterly
Date prior to the Commitment Termination Date and promptly upon the receipt by the Administrative
Agent of a Currency Valuation Notice (as defined below), the Administrative Agent shall determine
the sum of the aggregate Credit Exposure plus the aggregate outstanding principal amount of
all Competitive Loans. For the purpose of this determination, the outstanding principal or face
amount of any Syndicated Loan or Letter or Credit that is denominated in any Foreign Currency shall
be deemed to be the Dollar Equivalent of such Syndicated Loan or Letter of Credit, as the case may
be, determined as of such Quarterly Date or, in the case of a Currency Valuation Notice received by
the Administrative Agent prior to 11:00 a.m., New York City time, on a Business Day, on such
Business Day or, in the case of a Currency Valuation Notice otherwise received, on the first
Business Day after such Currency Valuation Notice is received. Upon making such determination, the
Administrative Agent shall promptly notify the Lenders and the Borrower thereof. For purposes
hereof, “Currency Valuation Notice” means a notice given by the Required Lenders to the
Administrative Agent stating that such notice is a “Currency Valuation Notice” and requesting that
the Administrative Agent determine the sum of the aggregate Credit Exposure plus the
aggregate outstanding principal amount of all Competitive Loans. The Administrative Agent shall
not be required to make more than one valuation determination pursuant to Currency Valuation
Notices within any rolling three month period. If, on the date of such determination such sum
exceeds 105% of the aggregate amount of the Commitments as then in effect, the Borrower shall, if
requested by the Required Lenders (through the Administrative Agent), prepay the Loans (and/or
provide cover for LC Exposure as specified in Section 2.06(k)) in such amounts as shall be
necessary so that after giving effect thereto the sum of the aggregate Credit Exposure plus
the aggregate outstanding principal amount of all Competitive Loans does not exceed the
Commitments. Any prepayment pursuant to this paragraph shall be applied to reduce the aggregate
amount of the Commitments (and to the extent that, after giving effect to such reduction, the sum
of the total Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans would exceed the Commitments, the Borrower shall, first, prepay Swingline Loans,
second, prepay Syndicated Loans, third, provide cover for LC Exposure as specified in
Section 2.06(k) and fourth, prepay Competitive Loans in an aggregate amount equal to such excess).



(c) Notices, Etc. The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy)
of any prepayment hereunder (i) in the case of prepayment of a Syndicated Eurocurrency Borrowing or
of a Competitive Borrowing, not later than 11:00 a.m., New York City time (or, in the case of a
Borrowing denominated in a Foreign Currency, 11:00 a.m., London time), three Business Days before
the date of prepayment, (ii) in the case of prepayment of a Syndicated ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date
of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a
prepayment under paragraph (b) of this Section, a reasonably detailed calculation of the amount of
such prepayment; provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a Syndicated Borrowing or
Competitive Borrowing, the Administrative Agent shall advise the relevant Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in
the case of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply
fully the required amount of a prepayment under paragraph (b) of this Section. Each prepayment of
a Syndicated Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13 and
shall be made in the manner specified in Section 2.10(b).



SECTION 2.12. Fees.



(a) Facility Fee. The Borrower agrees to pay to the Administrative Agent for account
of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily amount of the
Commitment of such Lender (whether used or unused) during the period from and including the date
hereof to but excluding the earlier of the date such Commitment terminates and the Commitment
Termination Date; provided that if such Lender continues to have any Credit Exposure after
its Commitment terminates, then such facility fee shall continue to accrue on the daily amount of
such Lender’s Credit Exposure from and including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any Credit Exposure. Accrued facility fees
shall be payable on each Quarterly Date and on the earlier of the date the Commitments terminate
and the Commitment Termination Date, commencing on the first such date to occur after the date
hereof; provided that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).



(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the Administrative
Agent for account of each Lender a participation fee with respect to its participations in Letters
of Credit, which shall accrue at a rate per annum equal to the Applicable Rate applicable to
interest on Syndicated Eurocurrency Loans on the average daily amount of such Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on which such Lender’s
Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to
the respective Issuing Lender a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and such Issuing Lender on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) in
respect of Letters of Credit issued by such Issuing Lender during the period from and including the
Effective Date to but excluding the later of the date of termination of the Commitments and the
date on which there ceases to be any LC Exposure, as well as such Issuing Lender’s standard fees
with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees shall be payable quarterly in arrears
on the applicable Quarterly Date, commencing on the first such date to occur after the Effective
Date; provided that all such fees shall be payable on the date on which the Commitments
terminate and any such fees accruing after the date on which the Commitments terminate shall be
payable on demand. Any other fees payable to any Issuing Lender pursuant to this paragraph shall
be payable within 10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).



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



(d) Payment of Fees. All fees payable hereunder shall be paid on the dates due, in
Dollars and immediately available funds, to the Administrative Agent (or to the respective Issuing
Lender, in the case of fees payable to it) for distribution, in the case of facility fees and
participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.



SECTION 2.13. Interest.



(a) ABR Loans. The Loans constituting each ABR Borrowing (including each Swingline
Loan) shall bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate.



(b) Eurocurrency Loans. The Loans constituting each Eurocurrency Borrowing shall
bear interest at a rate per annum equal to (i) in the case of a Syndicated Eurocurrency Borrowing,
the Adjusted LIBO Rate for the Interest Period for such Borrowing plus the Applicable Rate,
or (ii) in the case of a Competitive Eurocurrency Borrowing, the LIBO Rate for the Interest Period
for such Borrowing plus (or minus, as applicable) the Margin applicable to such
Loan.



(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear interest at a rate per annum
equal to the Fixed Rate applicable to such Loan.



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



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



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



SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of the Interest
Period for any Eurocurrency Borrowing (the Currency of such Borrowing herein called the
“Affected Currency”):




(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted
LIBO Rate (in the case of a Syndicated Eurocurrency Borrowing) or the LIBO Rate (in the case
of a Competitive Eurocurrency Borrowing) for the Affected Currency for such Interest Period;
or




(b) the Administrative Agent is advised by the Required Lenders (or, in the case of a
Competitive Eurocurrency Borrowing, any Lender that is required to make a Loan included in
such Borrowing) that the Adjusted LIBO Rate (in the case of a Syndicated Eurocurrency
Borrowing) or the LIBO Rate (in the case of a Competitive Eurocurrency Borrowing) for the
Affected Currency for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (or Lender) of making or maintaining their respective Loans (or its Loan)
included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Syndicated Borrowing
to, or the continuation of any Syndicated Borrowing as, a Syndicated Eurocurrency Borrowing
denominated in the Affected Currency shall be ineffective and, if the Affected Currency is Dollars,
such Syndicated Borrowing (unless prepaid) shall be continued as, or converted to, a Syndicated
ABR Borrowing, (ii) if the Affected Currency is Dollars and any Borrowing Request requests a
Syndicated Eurocurrency Borrowing denominated in Dollars, such Borrowing shall be made as a
Syndicated ABR Borrowing, (iii) if the Affected Currency is a Foreign Currency, any Borrowing
Request that requests a Syndicated Eurocurrency Borrowing denominated in the Affected Currency
shall be ineffective and (iv) any request by the Borrower for a Competitive Eurocurrency Borrowing
denominated in the Affected Currency shall be ineffective; provided that if the
circumstances giving rise to such notice do not affect all the Lenders, then requests by the
Borrower for Competitive Eurocurrency Borrowings denominated in the Affected Currency may be made
to Lenders that are not affected thereby.



SECTION 2.15. Increased Costs.



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




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




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



and the result of any of the foregoing shall be to increase the cost to such Lenders of making or
maintaining any Eurocurrency Loan or Fixed Rate Loan (or of maintaining its obligation to make any
such Loan) or to increase the cost to such Lender or such Issuing Lender of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender or such Issuing Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or such Issuing Lender, as the case may be,
in Dollars, such additional amount or amounts as will compensate such Lender or such Issuing
Lender, as the case may be, for such additional costs incurred or reduction suffered.
Notwithstanding anything in this clause (a) to the contrary, this clause (a) shall not apply to
Taxes, which shall be governed solely by Section 2.17.



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



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



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



(e) Competitive Loans. Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect of any Competitive
Loan if the Change in Law that would otherwise entitle it to such compensation shall have been
publicly announced prior to submission of the Competitive Bid pursuant to which such Loan was made.



SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of
any Eurocurrency Loan or Fixed Rate Loan other than on the last day of an Interest Period therefor
(including as a result of an Event of Default), (b) the conversion of any Syndicated Eurocurrency
Loan other than on the last day of an Interest Period therefor, (c) the failure to borrow, convert,
continue or prepay any Syndicated Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice is permitted to be revocable under Section 2.11(c) and is
revoked in accordance therewith), (d) the failure to borrow any Competitive Loan after accepting
the Competitive Bid to make such Loan, or (e) the assignment as a result of a request by the
Borrower pursuant to Section 2.19(b) of any Syndicated Eurocurrency Loan other than on the last day
of an Interest Period therefor or of any Competitive Loan, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to such event. In the
case of a Eurocurrency Loan, the loss to any Lender attributable to any such event shall be deemed
to include an amount determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal amount of such Loan
denominated in the Currency of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the duration of the Interest Period that would
have resulted from such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Currency (in the case of a Syndicated
Eurocurrency Loan) or the LIBO Rate for such Currency (in the case of a Competitive Eurocurrency
Loan) for such Interest Period, over (ii) the amount of interest that such Lender would
earn on such principal amount for such period if such Lender were to invest such principal amount
for such period at the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for deposits denominated in such Currency from other banks in the eurocurrency market at
the commencement of such period. A certificate of any Lender setting forth such Lender’s good
faith determination of any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.



SECTION 2.17. Taxes.



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



(b) Payment of Other Taxes by the Borrower. In addition, the Borrower shall pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable law.



(c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and each Issuing Lender, within 10 days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or such Issuing Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or an Issuing Lender, or by the Administrative Agent on its own behalf or
on behalf of a Lender or an Issuing Lender, shall be conclusive absent manifest error.



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



(e) Foreign Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or
any treaty to which such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate. Each such Foreign Lender shall also deliver to the Borrower
(with a copy to the Administrative Agent) such further documentation on or before the date that any
documentation previously delivered to the Borrower hereunder shall expire or become obsolete and
after the occurrence of any event requiring a change in such previously delivered documentation.



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



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



(a) Payments by the Borrower. The Borrower shall make each payment required to be
made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or
under Section 2.15, 2.16 or 2.17, or otherwise) or under any other Loan Document (except to the
extent otherwise provided therein) prior to 12:00 noon, Local Time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Administrative Agent’s Account, except as
otherwise expressly provided in the relevant Loan Document and except payments to be made directly
to an Issuing Lender or the Swingline Lender as expressly provided herein and payments pursuant to
Sections 2.15, 2.16, 2.17 and 9.03, which shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All amounts owing under this Agreement
(including facility fees, payments required under Section 2.15, and payments required under
Section 2.16 relating to any Loan denominated in Dollars, but not including principal of, and
interest on, any Loan denominated in any Foreign Currency or payments relating to any such Loan
required under Section 2.16, which are payable in such Foreign Currency) or under any other Loan
Document (except to the extent otherwise provided therein) are payable in Dollars. Notwithstanding
the foregoing, if the Borrower shall fail to pay any principal of any Loan when due (whether at
stated maturity, by acceleration, by mandatory prepayment or otherwise), the unpaid portion of such
Loan shall, if such Loan is not denominated in Dollars, automatically be redenominated in Dollars
on the due date thereof (or, if such due date is a day other than the last day of the Interest
Period therefor, on the last day of such Interest Period) in an amount equal to the Dollar
Equivalent thereof on the date of such redenomination and such principal shall be payable on
demand; and if the Borrower shall fail to pay any interest on any Loan that is not denominated in
Dollars, such interest shall automatically be redenominated in Dollars on the due date therefor
(or, if such due date is a day other than the last day of the Interest Period therefor, on the last
day of such Interest Period) in an amount equal to the Dollar Equivalent thereof on the date of
such redenomination and such interest shall be payable on demand.



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



(c) Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each
Syndicated Borrowing shall be made from the Lenders, each payment of facility fee under
Section 2.12 shall be made for account of the Lenders, and each termination or reduction of the
amount of the Commitments under Section 2.09 shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (ii) each Syndicated
Borrowing shall be allocated pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of the making of Syndicated Loans) or their respective Loans
that are to be included in such Borrowing (in the case of conversions and continuations of Loans);
(iii) each payment or prepayment of principal of Syndicated Loans by the Borrower shall be made for
account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the
Syndicated Loans held by them; and (iv) each payment of interest on Syndicated Loans by the
Borrower shall be made for account of the Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Lenders.



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



(e) Presumptions of Payment. Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the Administrative Agent
for account of the Lenders or an Issuing Lender hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such
Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact
made such payment, then each of the Lenders or such Issuing Lender, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the Federal Funds Effective Rate.



(f) Certain Deductions by the Administrative Agent. If any Lender shall fail to make
any payment required to be made by it pursuant to Section 2.05(c), 2.06(f), 2.07(b) or 2.18(e),
then the Administrative Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Administrative Agent for account of such
Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.



SECTION 2.19. Mitigation Obligations; Replacement of Lenders.



(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.15 or incurs any MCR Cost pursuant to Annex 1, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.15 or 2.17, as the case may be, or such MCR Costs, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable out-of-pocket
costs and expenses incurred by any Lender in connection with any such designation or assignment.



(b) Replacement of Lenders. If any Lender requests compensation under Section 2.15
or incurs any MCR Cost pursuant to Annex 1, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.17, or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and obligations under
this Agreement (other than any outstanding Competitive Loans held by it) to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior written consent
of the Administrative Agent (and, if a Commitment is being assigned, each Issuing Lender and the
Swingline Lender), which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans) and participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of
all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15, payments of any MCR Cost pursuant to Annex 1 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.



ARTICLE III




REPRESENTATIONS AND WARRANTIES




The Borrower represents and warrants to the Lenders that:



SECTION 3.01. Organization; Powers. Each of the Borrower and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required.



SECTION 3.02. Authorization; Enforceability. The Transactions are within the Borrower’s
corporate powers and have been duly authorized by all necessary corporate and, if required, by all
necessary shareholder action. This Agreement has been duly executed and delivered by the Borrower
and constitutes, and each of the other Loan Documents when executed and delivered by the Borrower
will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors’ rights and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law).



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



SECTION 3.04. Financial Condition; No Material Adverse Change.



(a) Financial Condition. The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders’ equity and cash flows (i) as of
and for each of the fiscal years ended December 26, 2004 and December 25, 2005, reported on by
PricewaterhouseCoopers LLP, independent public accountants and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended June 25, 2006, certified by a Financial Officer of
the Borrower. Such financial statements present fairly, in all material respects, the consolidated
financial position and results of operations and cash flows of the Borrower and its Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments
and the absence of footnotes in the case of the financial statements referred to in clause (ii) of
the first sentence of this paragraph.



(b) No Material Adverse Change. Since December 25, 2005, there has been no event,
development or circumstance that has had or could reasonably be expected to have a Material Adverse
Effect.



SECTION 3.05. Properties.



(a) Property Generally. Each of the Borrower and its Subsidiaries has good title to,
or valid leasehold interests in, all its real and personal property material to its business,
subject only to (i) Liens permitted by Section 6.02 and (ii) defects in title that, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect



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



SECTION 3.06. Litigation and Environmental Matters.



(a) Actions, Suits and Proceedings. There are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority now pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if adversely determined,
could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect
(other than the Disclosed Matters) or (ii) that involve this Agreement or the Transactions.



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



(c) Disclosed Matters. Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate, has had, or could
reasonably be expected to have, a Material Adverse Effect.



SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all Requirements of Law and all Contractual Obligations
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.



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



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



SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to have a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $10,000,000 the fair market value
of the assets of such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $10,000,000 the fair market value of the assets of all such
underfunded Plans.



SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which the Borrower or any of its Subsidiaries is
subject, and all other matters known to the Borrower, that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. None of the reports, financial
statements, certificates or other information furnished by or on behalf of the Borrower to the
Lenders in connection with the negotiation of this Agreement and the other Loan Documents or
delivered hereunder or thereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information or estimates,
the Borrower represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.



SECTION 3.12. Use of Credit. Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no part
of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin Stock.



SECTION 3.13. Subsidiaries and Investments.



(a) Subsidiaries. Set forth in Part A of Schedule 3.13 is a complete and correct
list of all of the Subsidiaries of the Borrower as of the date hereof, together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Person holding
ownership interests in such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Part A of Schedule 3.13, (x) each of the Borrower and its
Subsidiaries owns, free and clear of Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Part A of Schedule 3.13, (y) all of
the issued and outstanding Capital Stock of each such Person organized as a corporation is validly
issued, fully paid and nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.



(b) Investments. Set forth in Part B of Schedule 3.13 is a complete and correct list
of all Investments (other than Investments disclosed in Part A of Schedule 3.13) held by the
Borrower or any of its Subsidiaries in any Person on the date hereof and, for each such Investment,
(i) the identity of the Person or Persons holding such Investment and (ii) the nature of such
Investment. Except as disclosed in Part B of Schedule 3.13, each of the Borrower and its
Subsidiaries owns, free and clear of all Liens, all such Investments.



ARTICLE IV




CONDITIONS




SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Lenders to issue Letters of Credit hereunder shall not become effective until the date on
which the Administrative Agent shall have received each of the following documents, each of which
shall be satisfactory to the Administrative Agent (and to the extent specified below, to each
Lender) in form and substance (or such condition shall have been waived in accordance with
Section 9.02):




(a) Executed Counterparts. From each party hereto either (i) a counterpart of
this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed signature page to
this Agreement) that such party has signed a counterpart of this Agreement.




(b) Opinion of Counsel to the Borrower. A favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of Saul Ewing LLP,
counsel for the Borrower, substantially in the form of Exhibit B, and covering such other
matters relating to the Borrower, this Agreement or the Transactions as the Administrative
Agent shall reasonably request (and the Borrower hereby instructs such counsel to deliver
such opinion to the Lenders and the Administrative Agent).




(c) Opinion of Special New York Counsel to JPMCB. An opinion, dated the
Effective Date, of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to JPMCB,
substantially in the form of Exhibit C (and JPMCB hereby instructs such counsel to deliver
such opinion to the Lenders).




(d) Organizational Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Borrower, the authorization of the Transactions and any
other legal matters relating to the Borrower and its Subsidiaries, this Agreement or the
Transactions, all in form and substance satisfactory to the Administrative Agent and its
counsel.




(e) Officer’s Certificate. A certificate, dated the Effective Date and signed
by the President, a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in the lettered clauses of the first sentence of
Section 4.02.




(f) Payment of Accrued Fees and Other Amounts under Existing Credit Agreement.
Evidence that all principal, interest, fees and other amounts payable under the Existing
Credit Agreement that are accrued to the Effective Date and/or unpaid have been paid in full.




(g) Other Documents. Such other documents as the Administrative Agent or
special New York counsel to JPMCB may reasonably request.



The obligation of each Lender to make its initial extension of credit hereunder is also
subject to the payment by the Borrower of such fees and expenses as the Borrower shall have agreed
to pay to any Lender or the Administrative Agent in connection herewith, including the reasonable
fees and expenses of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to JPMCB, in
connection with the negotiation, preparation, execution and delivery of this Agreement and the
other Loan Documents and the extensions of credit hereunder (to the extent that statements for such
fees and expenses have been delivered to the Borrower).



The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Lenders to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 9.02) on or prior to 3:00 p.m., New York City time, on October 31, 2006 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate at such time).



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




(a) the representations and warranties of the Borrower set forth in this Agreement and
the other Loan Documents (other than, after the Effective Date, Section 3.04(b)) shall be
true and correct on and as of the date of such Loan or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable; and




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



Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in the preceding sentence.



ARTICLE V




AFFIRMATIVE COVENANTS




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



SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish, or
cause to be furnished, to the Administrative Agent and each Lender:




(a) within 75 days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows of the Borrower and its Subsidiaries as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year, all reported
on by PricewaterhouseCoopers LLP, or other independent public accountants of recognized
national standing (without a “going concern” or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;




(b) within 50 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower (commencing with the fiscal quarter ended on or nearest to
September 30, 2006), the consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for (or, in the case of the balance sheet, as of
the end of) the corresponding period or periods of the previous fiscal year, all certified by
a Financial Officer of the Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;




(c) concurrently with any delivery of financial statements under clause (a) or (b) of
this Section, a certificate of a Financial Officer of the Borrower (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections 6.01(g), 6.02(e),
6.04(d), 6.04(f), 6.05 and 6.09 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial statements referred
to in Section 3.04 and, if any such change has occurred, specifying the effect of such change
on the financial statements accompanying such certificate;




(d) promptly following any reasonable request by the Administrative Agent therefor,
delivery of (i) a certificate of the accounting firm that reported on any financial
statements under clause (a) of this Section stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or guidelines) and
(ii) management review letters, if any, received by the Borrower from such accounting firm in
connection with such examination;




(e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any of its
Subsidiaries with the SEC, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally; and




(f) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any of its
Subsidiaries, or compliance with the terms of this Agreement and the other Loan Documents, as
the Administrative Agent or any Lender may reasonably request.



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




(a) the occurrence of any Default;




(b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any of its
Affiliates that, if adversely determined, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding $20,000,000;




(c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000; and




(d) any other development that has, or could reasonably be expected to have, a Material
Adverse Effect.



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



SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each of
its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of the business of the Borrower and its Subsidiaries taken as a
whole; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.



SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations (other than Indebtedness), including tax liabilities, except
where (a) the validity or amount thereof is being contested in good faith by appropriate
proceedings and the Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP or (b) failure to make such payment, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.



SECTION 5.05. Maintenance of Properties and Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted and (b) keep insured
by financially sound and reputable insurers all property of a character usually insured by
corporations engaged in the same or similar business similarly situated against loss or damage of
the kinds and in the amounts customarily insured against by such corporations and carry such other
insurance as is usually carried by such corporations (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with respect thereto).



SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities. The Borrower will, and will cause
each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or
any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times, provided that (i) any
such visits or inspections at any time a Default has occurred or is continuing shall be at the
expense of the Borrower and at any other time at the expense of the Administrative Agent or such
Lender, as the case may be, and (ii) the Administrative Agent and each Lender shall be limited to
one such visit or inspection each during any fiscal year, except that such limitation shall not
apply at any time a Default has occurred or is continuing.



SECTION 5.07. Compliance with Laws and Agreements. The Borrower will, and will cause each
of its Subsidiaries to, comply with all Requirements of Law (including all Environmental Laws) and
all Contractual Obligations applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



SECTION 5.08. Use of Loan Proceeds and Letters of Credit. The proceeds of the Loans will
be used only for general corporate purposes of the Borrower and its Subsidiaries including
Acquisitions permitted hereunder and to refinance amounts owing under the Existing Credit
Agreement. No part of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that entails a violation of any of the regulations of the Board, including
Regulations U and X. Letters of Credit will be issued only for use in the ordinary course of
business of the Borrower and its Subsidiaries.



ARTICLE VI




NEGATIVE COVENANTS




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



SECTION 6.01. Subsidiary Indebtedness. The Borrower will not permit any of its
Subsidiaries to create, incur, assume or permit to exist any Indebtedness, except:




(a) Indebtedness outstanding on the date hereof and listed in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;




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




(c) Indebtedness or other obligations of any Subsidiary under trade letters of credit
and surety or other bonds incurred in the ordinary course of business of such Subsidiary in
an aggregate principal amount not to exceed $20,000,000 at any time outstanding;




(d) Indebtedness (including Capital Lease Obligations) secured by Liens permitted under
Section 6.02(d) in an aggregate principal amount not to exceed $20,000,000 at any time
outstanding;




(e) Indebtedness of any Person that becomes a Subsidiary after the date hereof;
provided that such Indebtedness exists at the time such Person becomes a Subsidiary
and is not created in contemplation of or in connection with such Person becoming a
Subsidiary;




(f) Indebtedness secured by Liens permitted under Section 6.02(e); and




(g) other Indebtedness in an aggregate principal amount not to exceed 20% of
Consolidated Net Worth at any time outstanding.



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




(a) Permitted Encumbrances;




(b) any Lien on any property or asset of the Borrower or any of its Subsidiaries
existing on the date hereof and listed on Schedule 6.02, provided that any such Lien
shall secure only those obligations which it secures on the date hereof and any extensions,
renewals and replacements thereof shall not increase the outstanding principal amount
thereof;




(c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary, and
extensions, renewals and replacements thereof that do not increase the outstanding principal
amount thereof; provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) no such Lien shall extend to any other property or assets of the Borrower or any
Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Subsidiary, as the case may be;




(d) Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to
Section 6.01(d) to finance the acquisition, construction or improvement of fixed or capital
assets; provided that (i) such Liens and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) no such Lien shall extend to any property or assets of
the Borrower or any Subsidiary other than the property financed by such Indebtedness;




(e) Liens covering accounts receivable and related rights of the Borrower, its
Subsidiaries and any special purpose entity issuing Indebtedness under a securitization
transaction or program with respect to such accounts receivable and related rights (a
“Receivables Securitization Program”), provided that (i) the Indebtedness of
such special purpose entity is recourse only to its assets (and not to the assets of the
Borrower or any Subsidiary other than such special purpose entity), (ii) the aggregate
principal amount of such Indebtedness shall not at any time exceed 10% of Consolidated Total
Capitalization at such time and (iii) no such Lien shall extend to any other property of the
Borrower and its Subsidiaries; and




(f) Liens incurred by the Borrower or any Subsidiary, in addition to Liens incurred
under the foregoing clauses (a) through (e) of this Section, provided that neither
(i) the aggregate outstanding principal amount of the obligations secured thereby nor
(ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the
assets subject thereto shall exceed (as to the Borrower and all Subsidiaries) $20,000,000 at
any time outstanding.



SECTION 6.03. Fundamental Changes. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all
or substantially all of its property or business, except:




(a) any Subsidiary of the Borrower may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the continuing or surviving entity) or
with or into any other Subsidiary;




(b) any Subsidiary of the Borrower may Dispose of any or all of its assets (i) to the
Borrower or any other Subsidiary (upon voluntary liquidation or otherwise) or (ii) pursuant
to a Disposition permitted by Section 6.04;




(c) any acquisition expressly permitted under Section 6.05 may be structured as a
merger, consolidation or amalgation; and




(d) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders.



SECTION 6.04. Dispositions of Property. The Borrower will not, and will not permit any of
its Subsidiaries to, Dispose of any property, whether now owned or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:




(a) the Disposition in the ordinary course of business of the Borrower and its
Subsidiaries (including Dispositions of obsolete or worn-out property no longer required or
useful in the business or operations of the Borrower or any of its Subsidiaries);




(b) Dispositions permitted by Sections 6.03(b)(i) or (d);




(c) the sale or issuance of Capital Stock of any Subsidiary to the Borrower or any
other Subsidiary;




(d) Dispositions with respect to the Receivables Securitization Program,
provided that the aggregate principal amount of Indebtedness related to any such
Receivables Securitization Program shall not at any time exceed 10% of Consolidated Total
Capitalization at such time;




(e) Dispositions of property or assets by the Borrower or any Subsidiary to the extent
that, as part of the same transaction or a series of related transactions, such property or
assets are within 365 after the date of such Disposition leased by the Borrower or such
Subsidiary as lessee for use in the business of the Borrower and its Subsidiaries; and




(f) Dispositions of property for fair market value not covered by the foregoing clauses
(a) through (e) of this Section, provided that with respect to any Disposition (or
any series of related Dispositions) in excess of $15,000,000, either (i) at the time of such
Disposition, the aggregate book value of the properties and assets thereof, taken together
with the aggregate amount of all prior Dispositions in excess of $15,000,000 pursuant to this
clause (f)(i), shall not exceed 15% of Consolidated Total Assets as at the end of the most
recently ended fiscal quarter or fiscal year for which financial statements have been
furnished pursuant to Section 5.01 (after giving pro forma effect to any Disposition made
pursuant to this clause (f)(i) since the date of such financial statements) or (ii) within
365 days after such Disposition, the proceeds thereof (net of ordinary and reasonable
out-of-pocket costs and expenses actually incurred in connection with such Disposition and
any repayment of Indebtedness of the Borrower or the relevant Subsidiary, as applicable,
related to the property that is the subject of such Disposition) are used to purchase
productive assets for use by the Borrower or any Subsidiary in their business.



SECTION 6.05. Acquisitions. The Borrower will not, and will not permit any of its
Subsidiaries to, make or permit to remain outstanding any Acquisition except any Acquisition where
(a) such Acquisition, if the Acquired Entity is a publicly held corporation, shall have been
approved by the board of directors of such Acquired Entity; (b) after giving effect to any such
Acquisition of Capital Stock, the Acquired Entity becomes a direct or indirect Subsidiary of the
Borrower; (c) the Acquired Entity is engaged in a line of business in accordance with the
requirements of Section 6.10; and (d) both immediately prior to such Acquisition and after giving
effect thereto, no Default shall have occurred and be continuing.



SECTION 6.06. Restricted Payments. The Borrower will not, and will not permit any of its
Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment if, at the time of such declaration or payment, a Default shall have occurred and be
continuing.



SECTION 6.07. Transactions with Affiliates. The Borrower will not, and will not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an
arm’s-length basis from a Person that is not an Affiliate and (b) transactions between or among the
Borrower and its wholly owned Subsidiaries not involving any other Affiliate.



SECTION 6.08. Restrictive Agreements. The Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of its Capital Stock
or to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary or to transfer any property to the Borrower or
any other Subsidiary; provided that the foregoing shall not apply to (a) restrictions and
conditions imposed by law or by this Agreement, (b) restrictions and conditions existing on the
date hereof identified on Schedule 6.08 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or condition) and
(c) customary restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale (provided that such restrictions and conditions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder).



SECTION 6.09. Certain Financial Covenants.



(a) Leverage Ratio. The Borrower will not permit the Consolidated Leverage Ratio to
exceed at any time 3.5 to 1.0.



(b) Interest Coverage Ratio. The Borrower will not permit the Consolidated Interest
Coverage Ratio to be less than 3.0 to 1.0 on the last day of any fiscal quarter of the Borrower.



SECTION 6.10. Lines of Business. The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business if, as a result, the general nature of the business in
which the Borrower and its Subsidiaries taken as a whole would then be engaged would be
substantially changed from the general nature of the business in which the Borrower and its
Subsidiaries taken as a whole are engaged as of the date hereof.



ARTICLE VII




EVENTS OF DEFAULT




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




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




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




(c) any representation or warranty made or deemed made by or on behalf of the Borrower
or any of its Subsidiaries in or in connection with this Agreement or any other Loan Document
or any amendment or modification hereof or thereof, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this Agreement or any
other Loan Document or any amendment or modification hereof or thereof, shall prove to have
been incorrect when made or deemed made in any material respect;




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




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




(f) the Borrower or any of its Subsidiaries shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness
beyond any period of grace provided with respect thereto;




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




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




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




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




(k) one or more judgments for the payment of money in an aggregate amount in excess of
$20,000,000 shall be rendered against the Borrower or any of its Subsidiaries or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the Borrower or any of its
Subsidiaries to enforce any such judgment;




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




(m) a Change of Control shall occur;



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



ARTICLE VIII




THE ADMINISTRATIVE AGENT




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



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



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



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



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



The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent’s resignation shall nonetheless become effective and (1) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall
perform the duties of the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to each Lender
directly) until such time as the Required Lenders appoint a successor agent as provided for above
in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder (if not already
discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.



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



Notwithstanding anything herein to the contrary the Joint Bookrunners and the Joint Lead
Arrangers, the Syndication Agent and the Documentation Agents named on the cover page of this
Agreement shall not have any duties or liabilities under this Agreement, except in their capacity,
if any, as Lenders.



ARTICLE IX




MISCELLANEOUS




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




(i) if to the Borrower, to Teleflex Incorporated, 155 South Limerick Road, Limerick,
Pennsylvania 19468, Attention of C. Jeffrey Jacobs, Treasurer (Telecopy No. (610) 948-6723;
Telephone No. (610) 948-2892) with a copy to Joan W. Schwartz, Esquire, Associate General
Counsel (Telecopy No. (610) 948-2011; Telephone No. (610) 948-2812);




(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 1111 Fannin Street,
10th Floor, Houston, Texas 77002-8069, Attention: Candace Grayson (Telephone No. (713)
750-7904; Telecopy No. (713) 750-2938) and, if such notice or other communication relates to
borrowings of, or payments or prepayments of, or the duration of Interest Periods for, Loans
denominated in a Foreign Currency, also to J.P. Morgan Europe Limited, 125 London Wall,
EC2Y5AJ London, England, Attention: Manager, Loans Agency (Telecopy No. + 44-207- 777 2360;
Telephone No. + 44-207- 777 2355), in each case with a copy to JPMorgan Chase Bank, N.A.,
277 Park Avenue, New York, New York 10172, Attention: Lee Brennan (Telecopy No.
(646) 534-0692; Telephone No. (212) 622-3622);




(iii) if to JPMCB as Issuing Lender, to JPMorgan Chase Bank, N.A., 1111 Fannin Street,
10th Floor, Houston, Texas 77002-8069, Attention: Candace Grayson (Telephone No. (713)
750-7904; Telecopy No. (713) 750-2938), with a copy to JPMorgan Chase Bank, N.A., 277 Park
Avenue, New York 10172, Attention: Lee Brennan (Telecopy No. (646) 534-0692; Telephone
No. (212) 622-3622);




(iv) if to any other Issuing Lender, to it at its address as provided in writing to the
Administrative Agent and the Borrower;




(v) if to the Swingline Lender, to JPMorgan Chase Bank, N.A., 1111 Fannin Street, 10th
Floor, Houston, Texas 77002-8069, Attention: Candace Grayson (Telephone No. (713) 750-7904;
Telecopy No. (713) 750-2938); and




(vi) if to a Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.



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



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



SECTION 9.02. Waivers; Amendments.



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



(b) Amendments. Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent
of the Required Lenders; provided that no such agreement shall




(i) increase the Commitment of any Lender without the written consent of such Lender,




(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby,




(iii) extend or postpone the scheduled date of payment of the principal amount of any
Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,




(iv) change Section 2.18(c) or (d) in a manner that would alter the pro rata treatment
requirements thereunder, without the written consent of each Lender, or




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



and provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, any Issuing Lender or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, such Issuing Lender or the
Swingline Lender, as the case may be.



SECTION 9.03. Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and administration of
this Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing Lender in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent,
any Issuing Lender or any Lender, including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Issuing Lender or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan Documents, including
its rights under this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restructuring or negotiations in respect
thereof.



(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Issuing Lender and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by any Issuing Lender to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee.



(c) Reimbursement by Lenders. To the extent that the Borrower fails to pay any
amount required to be paid by it to the Administrative Agent, an Issuing Lender or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, such Issuing Lender or the Swingline Lender, as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent, such Issuing Lender or the Swingline
Lender in its capacity as such. To the extent that following any such payment by the Lenders the
Borrower subsequently reimburses any amounts received by the Administrative Agent, an Issuing
Lender or the Swingline Lender pursuant to this paragraph (c), the Administrative Agent or such
Issuing Lender or Swingline Lender, as applicable, shall reimburse each Lender in an amount equal
to its Applicable Percentage of the amount reimbursed by the Borrower.



(d) Waiver of Consequential Damages, Etc. To the extent permitted by applicable law,
the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.



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



SECTION 9.04. Successors and Assigns.



(a) Assignments Generally. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender or Issuing Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the affiliates,
directors, officers, employees, attorneys and agents of each of the Administrative Agent, the
Issuing Lenders and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.



(b) Assignments by Lenders.




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




(A)  the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or,
if an Event of Default has occurred and is continuing, any other assignee;




(B)  the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to a Lender;




(C)  the Swingline Lender; and




(D)  each Issuing Lender.



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




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




(B)  each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement;




(C)  the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; and




(D)  the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.




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




(iv)  The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it
and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent, each Issuing Lender
and the Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower, each
Issuing Lender and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.




(v)  Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.



(c)(i)  Any Lender may, without the consent of the Borrower, the Administrative Agent, each
Issuing Lender or the Swingline Lender, sell participations to one or more banks or other entities
(a “Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, each Issuing Lender and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though
it were a Lender, provided that such Participant agrees to be subject to Section 2.18(d) as
though it were a Lender.



(ii)  A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.17(e) as though it were a Lender.



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



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



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



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



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



SECTION 9.09. Governing Law; Jurisdiction; Etc.



(a) Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.



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



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



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



SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.



SECTION 9.11. Judgment Currency. This is an international loan transaction in which the
specification of Dollars or any Foreign Currency, as the case may be (the “Specified
Currency”), and payment in New York City or the country of the Specified Currency, as the case
may be (the “Specified Place”), is of the essence, and the Specified Currency shall be the
currency of account in all events relating to Loans denominated in the Specified Currency. The
payment obligations of the Borrower under this Agreement shall not be discharged or satisfied by an
amount paid in another currency or in another place, whether pursuant to a judgment or otherwise,
to the extent that the amount so paid on conversion to the Specified Currency and transfer to the
Specified Place under normal banking procedures does not yield the amount of the Specified Currency
at the Specified Place due hereunder. If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in the Specified Currency into another currency (the
“Second Currency”), the rate of exchange that shall be applied shall be the rate at which
in accordance with normal banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding the day on which such judgment
is rendered. The obligation of the Borrower in respect of any such sum due from it to the
Administrative Agent or any Lender hereunder or under any other Loan Document (in this Section
called an “Entitled Person”) shall, notwithstanding the rate of exchange actually applied
in rendering such judgment, be discharged only to the extent that on the Business Day following
receipt by such Entitled Person of any sum adjudged to be due hereunder in the Second Currency such
Entitled Person may in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency so adjudged to be
due; and the Borrower hereby, as a separate obligation and notwithstanding any such judgment,
agrees to indemnify such Entitled Person against, and to pay such Entitled Person on demand, in the
Specified Currency, the amount (if any) by which the sum originally due to such Entitled Person in
the Specified Currency hereunder exceeds the amount of the Specified Currency so purchased and
transferred.



SECTION 9.12. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



SECTION 9.13. Treatment of Certain Information; Confidentiality.



(a) Treatment of Certain Information. The Borrower acknowledges that from time to
time financial advisory, investment banking and other services may be offered or provided to the
Borrower or one or more of its Subsidiaries (in connection with this Agreement or otherwise) by any
Lender or by one or more subsidiaries or affiliates of such Lender and the Borrower hereby
authorizes each Lender to share any information delivered to such Lender by the Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of such Lender to enter
into this Agreement, to any such subsidiary or affiliate, it being understood that any such
subsidiary or affiliate receiving such information shall be bound by the provisions of
paragraph (b) of this Section as if it were a Lender hereunder. Such authorization shall survive
the repayment of the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.



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



SECTION 9.14. Patriot Act. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), such Lender may be required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with said Act.



3



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




TELEFLEX INCORPORATED



By: /s/ C. Jeffrey Jacobs

Name: C. Jeffrey Jacobs

Title: Treasurer




U.S. Tax Identification No.: 23-1147939



4



LENDERS




	 	 	JPMORGAN CHASE BANK,






	 	 	 	as Lender, Issuing Lender, Swingline






	 	 	 	Lender and Administrative Agent





By/s/     


Name:



Title:



BANCA DI ROMA NEW YORK



BRANCH



By/s/     


Name:



Title:



BANK OF AMERICA, N.A.



By/s/     


Name:



Title:



THE BANK OF TOKYO-MITSUBISHI



UFJ, LTD., NEW YORK BRANCH



By/s/     


Name:



Title:



CALYON NEW YORK BRANCH



By/s/     


Name:



Title:



CITIZENS BANK OF PENNSYLVANIA



By/s/     


Name:



Title:



COMERICA BANK



By/s/     


Name:



Title:



HSBC BANK USA, NATIONAL ASSOCIATION



By/s/     


Name:



Title:



KBC BANK N.V.



By/s/     


Name:



Title:



MIZUHO CORPORATE BANK, LTD.



By/s/     


Name:



Title:



PNC BANK, NATIONAL ASSOCIATION



By/s/     


Name:



Title:



ROYAL BANK OF CANADA



By/s/     


Name:



Title:



SOCIÉTÉ GÉNÉRALE



By/s/     


Name:



Title:



SUNTRUST BANK



By/s/     


Name:



Title:



THE BANK OF NEW YORK



By/s/     


Name:



Title:



THE GOVERNOR AND COMPANY OF THE



BANK OF IRELAND



By/s/     


Name:



Title:



THE ROYAL BANK OF SCOTLAND



PLC



By/s/     


Name:



Title:



WACHOVIA BANK, NATIONAL



ASSOCIATION



By/s/     


Name:



Title:



5




Annex I




MCR Cost




Calculation of Mandatory Cost Rate





	1.	 	The MCR Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.






	2.	 	On the first day of each Interest Period for any Loan denominated in Sterling or another
Agreed Foreign Currency (or as soon as possible thereafter) the Administrative Agent shall
calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender
participating in such Loan, in accordance with the paragraphs set out below. The MCR Cost
will be calculated by the Administrative Agent as a weighted average of such Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each such
Lender in the relevant Loan) and will be expressed as a percentage rate per annum.






	3.	 	The Additional Cost Rate for any Lender lending from a specific lending office in a
Participating Member State will be the percentage notified by that Lender to the
Administrative Agent. This percentage will be certified by that Lender in its notice to the
Administrative Agent to be its reasonable determination of the cost (expressed as a percentage
of that Lender’s participation in all Loans made from that lending office) of complying with
the minimum reserve requirements of the European Central Bank in respect of loans made from
that lending office.






	4.	 	The Additional Cost Rate for any Lender lending from a lending office in the United Kingdom
will be calculated by the Administrative Agent as follows:






	 	(a)	 	in relation to a Loan made in Pounds Sterling:





	 	 	 
	AB + C (B – D) + E x 0.01

	 	percent per annum
	 

	 	

	 
	 	 
	100 – (A + C)

	 	








	 	(b)	 	in relation to a Loan made in any Agreed Foreign Currency other than Pounds
Sterling:





	 	 	 
	E x 0.01

	 	percent per annum
	 

	 	

	 
	 	 
	300

	 	







Where:




	 	 	 	A            is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which such Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.






	 	 	 	B            is the percentage rate of interest (excluding the Applicable Margin and the MCR
Cost and, if applicable, any additional amount of interest specified in
Section 2.13(d)) payable for the relevant Interest Period on the Loan.






	 	 	 	C            is the percentage (if any) of Eligible Liabilities which such Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.






	 	 	 	D            is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.






	 	 	 	E            is designed to compensate the Lenders for amounts payable under the Fees Rules
and is calculated by the Administrative Agent as being the average of the most recent
rates of charge supplied by the Reference Banks to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.





5. For the purposes of this Annex I:




	 	(a)	 	“Eligible Liabilities” has the meaning given to it from time to time
under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank
of England.






	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the
Supervision Manual of the Financial Services Authority or such other law or regulation
as may be in force from time to time in respect of the payment of fees for the
acceptance of deposits.






	 	(c)	 	“Financial Services Authority” means the body corporate known by that
name that has the functions conferred on it by or under the Financial Services and
Markets Act 2000 or any successor entity.






	 	(d)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate).






	 	(e)	 	“Reference Banks” means, collectively, the principal London offices of
JPMorgan Chase Bank, N.A. and such other banks as may be appointed by the Administrative
Agent in consultation with the Borrower.






	 	(f)	 	“Special Deposits” has the meaning given to it from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of
England.






	 	(g)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.






	6.	 	In application of the above formula, A, B, C and D will be included in the formula as
percentages (i.e. 5 percent will be included in the formula as 5 and not as 0.05). A negative
result obtained by subtracting D from B shall be taken as zero. The resulting figures shall
be rounded to four decimal places.






	7.	 	If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent, the
rate of charge payable by such Reference Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by such Reference Bank as being the average of the Fee Tariffs
applicable to such Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of such Reference Bank.






	8.	 	Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without limitation, each Lender
shall supply the following information on or prior to the date on which it becomes a Lender:






(a) the jurisdiction of its applicable lending office; and




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




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




	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Administrative Agent
based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent to the contrary, each
Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a lending office in the
same jurisdiction as its lending office.






	10.	 	The Administrative Agent shall have no liability to any Person if such determination results
in an Additional Cost Rate which over or under compensates any Lender and shall be entitled to
assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3,
7 and 8 above is true and correct in all respects.






	11.	 	The Administrative Agent shall distribute the additional amounts received as a result of the
MCR Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on the
information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.






	12.	 	Any determination by the Administrative Agent pursuant to this Annex I in relation to a
formula, the MCR Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the
absence of manifest error, be conclusive and binding on all parties to the Credit Agreement.






	13.	 	The Administrative Agent may from time to time, after consultation with the Borrower and the
Lenders, determine in its reasonable judgment and provide notice to the Borrower and the
Lenders of any amendments which are required to be made to this Annex I in order to comply
with any change in law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank (or, in any case,
any other authority which replaces all or any of its functions) and any such determination
shall, in the absence of manifest error, be conclusive and binding on all parties to the
Credit Agreement.






6