Exhibit 4.1


 


EXECUTION
COPY


 


CREDIT AGREEMENT

($1,000,000,000 Five Year Revolving Credit Facility)


 


dated as of


 


January 20, 2005


 


among


 


MEDTRONIC, INC.,



as Borrower,


 


CERTAIN OF ITS
SUBSIDIARIES,



as Guarantors,


 


THE LENDERS PARTY HERETO,



CITICORP USA, INC.



as Administrative Agent


 


BANK OF AMERICA, N.A.



as Syndication Agent



and


 


CITIGROUP GLOBAL MARKETS
INC.

and

BANC OF AMERICA SECURITIES LLC,



as Joint Lead Arrangers and Joint Book Managers


 





















 


TABLE OF CONTENTS


 


	
  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.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II  The
  Credits

  	
   

  
	
  Section 2.01

  	
  Commitments.

  	
   

  
	
  Section 2.02

  	
  Revolving Loans
  and Revolving Borrowings.

  	
   

  
	
  Section 2.03

  	
  Requests for
  Revolving Borrowings.

  	
   

  
	
  Section 2.04

  	
  Requests for
  Swingline Borrowings.

  	
   

  
	
  Section 2.05

  	
  Letters of
  Credit.

  	
   

  
	
  Section
  2.06

  	
  Funding
  of Revolving Borrowings.

  	
   

  
	
  Section
  2.07

  	
  Interest
  Elections.

  	
   

  
	
  Section
  2.08

  	
  Termination
  and Reduction of Commitments.

  	
   

  
	
  Section
  2.09

  	
  Repayment
  of Loans; Evidence of Debt.

  	
   

  
	
  Section
  2.10

  	
  Prepayment
  of Loans.

  	
   

  
	
  Section
  2.11

  	
  Fees.

  	
   

  
	
  Section
  2.12

  	
  Interest.

  	
   

  
	
  Section
  2.13

  	
  Alternate
  Rate of Interest.

  	
   

  
	
  Section
  2.14

  	
  Increased
  Costs.

  	
   

  
	
  Section
  2.15

  	
  Break
  Funding Payments.

  	
   

  
	
  Section
  2.16

  	
  Taxes.

  	
   

  
	
  Section
  2.17

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

  	
   

  
	
  Section
  2.18

  	
  Mitigation
  Obligations; Replacement of Lenders.

  	
   

  
	
  Section
  2.19.

  	
  Increase
  in the Aggregate Commitments.

  	
   

  
	
   

  	
   

  	
   

  
	
  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
  and Holding Company Status.

  	
   

  
	
  Section
  3.09

  	
  Taxes.

  	
   

  
	
  Section
  3.10

  	
  ERISA.

  	
   

  
	
  Section
  3.11

  	
  Disclosure.

  	
   

  
	
  Section
  3.12

  	
  Federal
  Regulations.

  	
   

  
	
  Section
  3.13

  	
  Purpose
  of Loans.

  	
   

  
	
  Section
  3.14

  	
  Significant
  Subsidiaries.

  	
   

  



 


i





















 


	
  ARTICLE
  IV  Conditions

  	
   

  
	
  Section
  4.01

  	
  Closing
  Conditions.

  	
   

  
	
  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; Insurance.

  	
   

  
	
  Section
  5.06

  	
  Books
  and Records; Inspection Rights.

  	
   

  
	
  Section
  5.07

  	
  Compliance
  with Laws.

  	
   

  
	
  Section
  5.08

  	
  Use
  of Proceeds.

  	
   

  
	
  Section
  5.09

  	
  Maintenance
  of Accreditation, Etc.

  	
   

  
	
  Section
  5.10

  	
  Additional
  Subsidiary Guarantors.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI  Negative Covenants

  	
   

  
	
  Section
  6.01

  	
  Consolidated
  Tangible Net Worth.

  	
   

  
	
  Section
  6.02

  	
  Indebtedness.

  	
   

  
	
  Section
  6.03

  	
  Liens.

  	
   

  
	
  Section
  6.04

  	
  Fundamental
  Changes.

  	
   

  
	
  Section
  6.05

  	
  Transactions
  with Affiliates.

  	
   

  
	
  Section
  6.06

  	
  Restrictive
  Agreements.

  	
   

  
	
  Section
  6.07

  	
  Business
  Activity.

  	
   

  
	
  Section
  6.08

  	
  Restricted
  Payments.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII  The Administrative Agent

  	
   

  
	
  Section
  8.01

  	
  Appointment
  and Authorization of Administrative Agent.

  	
   

  
	
  Section
  8.02

  	
  Notice
  of Default.

  	
   

  
	
  Section
  8.03

  	
  Reliance
  by Administrative Agent.

  	
   

  
	
  Section
  8.04

  	
  Delegation
  of Duties.

  	
   

  
	
  Section
  8.05

  	
  Successor
  Administrative Agent.

  	
   

  
	
  Section
  8.06

  	
  Credit
  Decision; Disclosure of Information by Administrative Agent.

  	
   

  
	
  Section
  8.07

  	
  Indemnification
  of Administrative Agent.

  	
   

  
	
  Section
  8.08

  	
  Administrative
  Agent in its Individual Capacity.

  	
   

  
	
   

  	
   

  	
   

  
	
  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.

  	
   

  
				



 


ii





















 


	
  Section
  9.08

  	
  Right
  of Setoff.

  	
   

  
	
  Section
  9.09

  	
  Governing
  Law; Jurisdiction; Consent to Service of Process.

  	
   

  
	
  Section
  9.10

  	
  WAIVER
  OF JURY TRIAL.

  	
   

  
	
  Section
  9.11

  	
  Headings.

  	
   

  
	
  Section
  9.12

  	
  Confidentiality.

  	
   

  
	
  Section
  9.13

  	
  Patriot
  Act Notice.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X  GUARANTY

  	
   

  
	
  Section
  10.1

  	
  The
  Guaranty.

  	
   

  
	
  Section
  10.2

  	
  Bankruptcy.

  	
   

  
	
  Section
  10.3

  	
  Nature
  of Liability.

  	
   

  
	
  Section
  10.4

  	
  Independent
  Obligation.

  	
   

  
	
  Section
  10.5

  	
  Authorization.

  	
   

  
	
  Section
  10.6

  	
  Reliance.

  	
   

  
	
  Section
  10.7

  	
  Waiver.

  	
   

  
	
  Section
  10.8

  	
  Limitation
  on Enforcement.

  	
   

  
	
  Section 10.9

  	
  Confirmation of
  Payment.

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 2.01 – Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 3.06 –
  Disclosed Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 3.14
  – Significant Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 6.02 –
  Existing Indebtedness

  	
   

  
				



 


iii





















 


SCHEDULES:


 


Schedule 2.01 -
Commitments


Schedule 3.06 -
Disclosed Matters


Schedule 3.14 -
Subsidiaries and Significant Subsidiaries


Schedule 6.02 -
Existing Indebtedness


 


EXHIBITS:


 


Exhibit A -
Form of Assignment and Acceptance


Exhibit B - Form of
Joinder Agreement


Exhibit C - Form of
Revolving Borrowing Request


Exhibit D - Form of
Interest Election Request


 


iv





















 


CREDIT
AGREEMENT


 


THIS FIVE
YEAR CREDIT AGREEMENT (this “Credit Agreement” or “Agreement”),
dated as of January 20, 2005, among Medtronic, Inc., a Minnesota corporation
(the “Borrower”), the Subsidiaries of the Borrower listed on the
signature pages hereto (individually a “Guarantor”, collectively the “Guarantors”),
the Lenders party hereto, Bank of America, N.A., as Issuing Bank, and Citicorp
USA, Inc. (“CUSA”), as Administrative Agent, Issuing Bank and Swingline
Lender.


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS,
the Borrower is party to the 364-Day Credit Agreement dated as of January 24,
2002, as amended (the “Existing Credit Agreement”), among the Borrower,
certain Subsidiaries of the Borrower party thereto, the lenders parties thereto
and Bank of America, N.A., as Administrative Agent.


 


WHEREAS,
the Borrower desires to replace the Existing Credit Agreement with this
Agreement upon the terms, and subject to the conditions, hereinafter set forth.


 


NOW,
THEREFORE, IN CONSIDERATION of the premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:


 


ARTICLE I


 


Definitions


 


Section 1.01                            Defined
Terms.


 


As used in this Credit
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 comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.


 


“Administrative
Agent” means CUSA, in its capacity as administrative agent for the Lenders
hereunder, and its successors in such capacity.


 


“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.


 


“Agent-Related
Persons” means the Administrative Agent (including any successor agent),
together with its Affiliates (including, in the case of CUSA in its


 





















 


capacity as the
Administrative Agent, Citigroup Global Markets Inc., as Arranger), and the
officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.


 


“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 in effect on such day plus 1⁄2 of 1%.  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, respectively.


 


“Applicable
Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment.  If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.


 


“Applicable
Rate” means, for any day, with respect to any Eurodollar Loan, or with
respect to the facility fees or utilization fees payable hereunder, as the case
may be, the applicable rate per annum set forth below (in basis points) under
the caption “Eurodollar Spread”, “Facility Fee Rate”, or “Utilization Fee Rate”,
as the case may be, based upon the ratings by Moody’s and S&P,
respectively, applicable on such date to the Index Debt:


 


	
  Category

  	
   

  	
  Moody’s/S&P Rating

  	
   

  	
  Eurodollar Spread

  	
   

  	
  Facility Fee Rate

  	
   

  	
  Utilization Fee Rate

  (Commitment

  Utilization Percentage

  greater than 50%)

  
	
  I

  	
   

  	
  Greater than or
  equal to Aa2/AA

  	
   

  	
  13.75

  	
   

  	
  5.0

  	
   

  	
  5.0

  
	
  II

  	
   

  	
  Greater than or
  equal to Aa3/AA- but less than Aa2/AA

  	
   

  	
  14.00

  	
   

  	
  6.0

  	
   

  	
  7.5

  
	
  III

  	
   

  	
  Greater than or
  equal to A1/A+ but less than Aa3/AA-

  	
   

  	
  20.50

  	
   

  	
  7.0

  	
   

  	
  7.5

  
	
  IV

  	
   

  	
  Greater than or
  equal to A2/A but less than A1/A+

  	
   

  	
  27.00

  	
   

  	
  8.0

  	
   

  	
  10.0

  
	
  V

  	
   

  	
  Less than A2/A

  	
   

  	
  32.50

  	
   

  	
  12.5

  	
   

  	
  12.5

  



 


For
purposes of the foregoing, (i) if either Moody’s or S&P shall not have
in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category V;
(ii) if the ratings established or deemed to have been established by
Moody’s and S&P for the Index Debt shall fall within different Categories,
the Applicable Rate shall be based on the higher of the two ratings unless one
of the two ratings is two or more Categories lower than the other, in which
case the Applicable Rate


 


2





















 


shall be determined by
reference to the Category next above that of the lower of the two ratings; and
(iii) if the ratings established or deemed to have been established by
Moody’s and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating system of Moody’s or S&P), such change shall be
effective as of the date on which it is first announced by the applicable
rating agency.  Each change in the
Applicable Rate shall apply during the period commencing on the effective date
of such change and ending on the date immediately preceding the effective date
of the next such change.  If the rating
system of Moody’s or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this definition
to reflect such changed rating system or the unavailability of ratings from
such rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.


 


“Approved
Fund” means with respect to any Lender that is a fund that invests in
commercial loans, any other fund that invests in commercial loans and is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.


 


“Arranger”
means each of Citigroup Global Markets Inc. and Banc of America Securities LLC,
in its capacity as joint lead arranger and joint book manager.


 


“Assignment
and Acceptance” means an assignment and acceptance 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.


 


“Assuming Lender” has the meaning specified in
Section 2.19(d).


 


“Assumption Agreement” has the meaning
specified in Section 2.19(d)(ii).


 


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


 


“Bank
of America” means Bank of America, N.A.


 


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


 


“Borrower”
means Medtronic, Inc., a Minnesota corporation.


 


“Borrowing”
means a Revolving Borrowing or a Swingline Borrowing, as the case may be.


 


“Business
Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to


 


3





















 


remain closed; provided
that, when used in connection with a Eurodollar Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.


 


“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 (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) 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.


 


“Cash
Equivalents” shall mean (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition (“Government Obligations”),
(b) U.S. dollar denominated (or foreign currency fully hedged) time
deposits, certificates of deposit, Eurodollar time deposits and Eurodollar
certificates of deposit of (y) any domestic commercial bank of recognized
standing having capital and surplus in excess of $250,000,000 or (z) any
bank whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Moody’s is at least P-1 or the equivalent
thereof (any such bank being an “Approved Bank”), in each case with
maturities of not more than 364 days from the date of acquisition,
(c) commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or commercial paper or any
variable rate notes issued by, or guaranteed by any domestic corporation rated
A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent
thereof) or better by Moody’s and maturing within six months of the date of
acquisition, (d) repurchase agreements with a bank or trust company
(including a Lender) or a recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America, (e) obligations of any state
of the United States or any political subdivision thereof for the payment of
the principal and redemption price of and interest on which there shall have
been irrevocably deposited Government Obligations maturing as to principal and
interest at times and in amounts sufficient to provide such payment and
(f) auction preferred stock rated in the highest short-term credit rating
category by S&P or Moody’s.


 


“Change
in 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


 


4





















 


Exchange Act of 1934 and
the rules of the SEC thereunder as in effect on the date hereof), of shares
representing more than 25% 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 Credit 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 Credit Agreement or (c) compliance by any
Lender or any Issuing Bank (or, for purposes of Section 2.14(b), by any
lending office of such Lender or by such Lender’s or such Issuing Bank’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 Credit Agreement.


 


“Closing
Date” means the date hereof.


 


“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 Loans
and to acquire participations in Swingline Loans and Letters of Credit
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender’s Revolving Credit Exposure hereunder, as such commitment may
be reduced from time to time pursuant to Section 2.08 or increased
pursuant to Section 2.19.  The
initial amount of each Lender’s Commitment is set forth on Schedule 2.01,
or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable.


 


“Commitment Date” has the meaning specified in
Section 2.19(b).


 


“Commitment Increase” has the meaning specified
in Section 2.19(a).


 


“Commitment
Utilization Percentage” means on any day the percentage equivalent of a
fraction (a) the numerator of which is the sum of the aggregate
outstanding principal amount of Loans (but not including any Swingline Loans)
hereunder plus the aggregate amount of LC Exposure hereunder and
(b) the denominator of which is the aggregate amount of the Commitments
(or, on any day after termination of the Commitments, the aggregate amount of
the Commitments in effect immediately preceding such termination) hereunder.


 


“Consolidated
Assets” means the consolidated assets of the Borrower and its Subsidiaries,
determined in accordance with GAAP.


 


5





















 


“Consolidated
Tangible Assets” means the Consolidated Assets less: (i) goodwill and
(ii) other intangibles (other than patents, trademarks, licenses, copyrights
and other intellectual property and prepaid assets).


 


“Consolidated
Tangible Net Worth” means at any date, Consolidated Tangible Assets minus
Consolidated Total Liabilities, determined in accordance with GAAP.


 


“Consolidated
Total Liabilities” means at any date, with respect to the Borrower and its
Subsidiaries on a consolidated basis, total liabilities, determined in accordance
with GAAP.


 


“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
Documents” means a collective reference to this Credit Agreement, the
promissory notes, if any, each Joinder Agreement and all other related
agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto (in each case as the same may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time), and “Credit
Document” means any one of them.


 


“CUSA”
means Citicorp USA, Inc.


 


“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 and the environmental
matters disclosed in Schedule 3.06.


 


“dollars”
or “$” refers to lawful money of the United States of America.


 


“Eligible
Assignee” has the meaning specified in Section 2.19(c).


 


“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 or the
management, release or threatened release of any Hazardous Material.


 


“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


 


6





















 


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.


 


“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.


 


“Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the LIBO Rate.


 


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


 


“Excess
Utilization Day” means each day on which the Commitment Utilization
Percentage exceeds 50%.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank 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


 


7





















 


other jurisdiction in
which any Lender is located and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under
Section 2.18(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
Credit Agreement or is attributable to such Foreign Lender’s failure or
inability to comply with Section 2.16(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 2.16(a).


 


“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.


 


“Fee
Letter” means the letter agreement dated December 17, 2004 addressed to the
Borrower from the Administrative Agent, as amended, modified, restated or
otherwise supplemented from time to time.


 


“Financial
Officer” means the chief financial officer, principal accounting officer,
senior vice president of finance, treasurer, assistant treasurer, controller or
assistant controller of the Borrower or any officer having substantially the
same position for the Borrower.


 


“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, 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


 


8





















 


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.


 


“Guarantor”
means each of the Persons identified as a “Guarantor” on the signature pages
hereto and each Person which may hereafter execute a Joinder Agreement pursuant
to Section 5.10, together with their successors and permitted assigns, and
“Guarantor” means any one of them.


 


“Guaranty”
shall mean the guaranty of the Guarantors set forth in Article X.


 


“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.


 


“Hedging
Agreement” means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or
currency exchange rate or commodity price hedging arrangement.


 


“Increase Date” has the meaning specified in
Section 2.19(a).


 


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


 


“Indebtedness”
of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to similar cash advances (including,
without limitation, all obligations pursuant to any sale or financing of
receivables, but excluding any premiums, fees and deposits received in the
ordinary course of business), (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person under conditional sale or other title retention agreements relating
to property acquired by such Person, (d) all obligations of such Person in
respect of the deferred purchase price of property or services (excluding
current accounts payable or other like obligations incurred in the ordinary
course of business), (e) 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, (f) all
Guarantees by such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of


 


9





















 


guaranty and (i) all
obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances.  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.  Notwithstanding the foregoing, Indebtedness
shall exclude Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary.


 


“Indemnified
Liabilities” shall have the meaning assigned to such term in Section
9.03(b).


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Index
Debt” means senior, unsecured, long-term indebtedness for borrowed money of
the Borrower that is not guaranteed by any other Person or subject to any other
credit enhancement.


 


“Interest
Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.07, in substantially the
form of Exhibit D.


 


“Interest
Payment Date” means (a) with respect to any ABR Loan (including
Swingline Loans), the last day of each March, June, September and December, and
(b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Revolving Borrowing of which such Loan is a part and,
in the case of a Eurodollar Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months’ duration after the first day of such
Interest Period.


 


“Interest
Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Eurodollar Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; 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 such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the immediately preceding
Business Day and (ii) any Interest Period 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.


 


“Issuing
Bank” means CUSA and Bank of America in their respective capacities as an
issuer of Letters of Credit hereunder, and their successors in such capacity as
provided in Section 2.05(j).  Each
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the


 


10





















 


term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.


 


“Joinder
Agreement” means a Joinder Agreement substantially in the form of Exhibit B
hereto, executed and delivered by a new Guarantor in accordance with the
provisions of Section 5.10.


 


“LC
Commitment” means, with respect to each Issuing Bank, the commitment of
such Issuing Bank to issue Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate undrawn amount of all outstanding Letters of
Credit issued by such Issuing Bank plus the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of such Issuing
Bank under Letters of Credit issued by such Issuing Bank.  The initial amount of each Issuing Bank’s LC
Commitment is set forth on Schedule 2.01.


 


“LC
Disbursement” means a payment made by an Issuing Bank 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, each Assuming Lender
that shall become a party hereto pursuant to Section 2.19 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.


 


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


 


“LIBO
Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, the rate appearing on Page 3750 of the Moneyline Telerate Markets
screen (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period.  In the event that such rate is not available
at such time for any reason, then the “LIBO Rate” with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits 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.


 


11





















 


“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.


 


“Loans”
means the loans made by the Lenders to the Borrower pursuant to Article II of
this Credit Agreement (including, without limitation, the Swingline Loans).


 


“Material
Adverse Effect” means a material adverse effect on (a) the business,
property, operations or financial condition of the Borrower and the
Subsidiaries taken as a whole, (b) the ability of the Borrower to perform
any of its obligations under this Credit Agreement or (c) the legal rights
of or benefits available to the Lenders under this Credit Agreement.


 


“Material
Indebtedness” means Indebtedness (other than the Loans), or obligations in
respect of one or more Hedging Agreements, of any one or more of the Borrower
and its Subsidiaries in an aggregate principal amount exceeding $100,000,000.  For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of
the Borrower or any Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.


 


“Maturity
Date” means the fifth anniversary of the Closing Date.


 


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


 


“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 hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Credit Agreement.


 


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


 


“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


 


12





















 


(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 Citibank, N.A. as its base rate in effect at its principal office in
New York, New York, each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.


 


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


 


“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 Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving
Credit Exposures and unused Commitments at such time.


 


“Restricted
Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of capital stock of the Borrower or any
of its Subsidiaries, now or hereafter outstanding (other than (A) dividends
payable solely in the same class of capital stock of such Person and (B)
dividends or other distributions payable to the Borrower (directly or
indirectly through Subsidiaries) and ratably to minority shareholders), (ii)
any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of
capital stock of the Borrower or any of its Subsidiaries, now or hereafter
outstanding and (iii) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any
class of capital stock of the Borrower or any of its Subsidiaries, now or
hereafter outstanding.


 


“Revolving
Borrowing” means Revolving Loans of the same Type, made, converted or
continued on the same date and in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.


 


“Revolving
Borrowing Request” means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03, in substantially the form of Exhibit C.


 


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


 


“Revolving
Loan” means a Loan made pursuant to Section 2.03.


 


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


 


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


 


13





















 


“Significant
Subsidiary” means, at any particular time, any Subsidiary of the Borrower
(or such Subsidiary and its Subsidiaries taken together) that would be a “significant
subsidiary” of the Borrower within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.


 


“Statutory
Reserve Rate” means 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 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 or any Lender 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.  Eurodollar 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.


 


“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.


 


“Subsidiary”
means any subsidiary of the Borrower.


 


“Swingline
Borrowing” means a Swingline Loan made pursuant to Section 2.04(b).


 


“Swingline
Commitment” means the commitment of the Swingline Lender to make Swingline
Loans in an aggregate principal amount at any time outstanding of up to the
Swingline Committed Amount.


 


“Swingline
Committed Amount” shall have the meaning assigned to such term in Section
2.04(a).


 


“Swingline
Exposure” means, at any time, the aggregate 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.


 


14





















 


“Swingline
Lender” means CUSA, in its capacity as lender of Swingline Loans hereunder,
and its successors in such capacity.


 


“Swingline
Loan” means a Loan made pursuant to Section 2.04.


 


“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 Credit
Agreement, 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 comprising such Borrowing, is determined
by reference to the LIBO Rate or the Alternate Base Rate.


 


“Used
Commitment” means the aggregate outstanding principal amount of Loans (but
not including any Swingline Loans) hereunder plus the aggregate amount
of LC Exposure hereunder.


 


“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.


 


Section 1.02                            Classification
of Loans and Borrowings.


 


For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar
Loan”).  Borrowings also may be
classified and referred to by Type (e.g., a “Eurodollar Borrowing”).


 


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 Credit 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 Credit
Agreement and (e) the words “asset” and “property” shall


 


15





















 


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.


 


ARTICLE II


 


The Credits


 


Section 2.01                            Commitments.


 


Subject
to the terms and conditions set forth herein, each Lender agrees to make Loans
to the Borrower from time to time during the Availability Period in an
aggregate principal amount that will not result in the aggregate principal
amount of such Lender’s Revolving Credit Exposure exceeding such Lender’s
Commitment.  Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Loans.


 


Section 2.02                            Revolving
Loans and Revolving Borrowings.


 


(a)                                  Each
Revolving Loan shall be made as part of a Revolving Borrowing consisting of
Revolving Loans made by the Lenders ratably in accordance with their respective
Commitments.  The failure of any Lender
to make any Revolving Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments
of the Lenders are several and no Lender shall be responsible for any other
Lender’s failure to make Revolving Loans as required.


 


(b)                                 Subject
to Section 2.13, each Revolving Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith.  Each Swingline Loan shall be
an ABR Loan.  Each Lender at its option
may make any Eurodollar 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 Credit Agreement.


 


16





















 


(c)                                  At
the commencement of each Interest Period for any Eurodollar Borrowing or on the
date of any ABR Borrowing, such Revolving Borrowing shall be in a minimum
aggregate amount of $5,000,000 and integral multiples of $500,000 in excess
thereof; provided that an ABR Borrowing may be in an aggregate amount
that is equal to the entire unused balance of the total Commitments.  Revolving Borrowings of more than one Type
may be outstanding at the same time; provided that there shall not at
any time be more than an aggregate total of ten Eurodollar Borrowings
outstanding.


 


(d)                                 Notwithstanding
any other provision of this Credit Agreement, the Borrower shall not be
entitled to request, or to elect to convert or continue, any Revolving
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.


 


Section 2.03                            Requests
for Revolving Borrowings.


 


To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurodollar Borrowing, not later than
12:00 noon (New York City time), three Business Days before the date of
the proposed Revolving Borrowing or (b) in the case of an ABR Borrowing,
not later than 12:00 noon (New York City time), on the date of the
proposed Revolving Borrowing, including any such notice of an ABR Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).  Each such telephonic Revolving Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Revolving Borrowing
Request signed by a Financial Officer of the Borrower.  Each such telephonic and written Revolving
Borrowing Request shall specify the following information in compliance with
Section 2.02:


 


(i)                                     the
aggregate amount of the requested Revolving Borrowing;


 


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


 


(iii)                               whether
such Revolving Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;


 


(iv)                              in
the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”; 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 2.06.


 


If no election as to the
Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing.  If
no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month’s duration.  Promptly
following receipt of a Revolving Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of


 


17





















 


the details thereof and
of the amount of such Lender’s Loan to be made as part of the requested
Revolving Borrowing.


 


Section 2.04                            Requests
for Swingline Borrowings.


 


(a)                                  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; provided that (i) the aggregate principal amount of Swingline Loans
outstanding at any time shall not exceed $50,000,000 (the “Swingline
Committed Amount”), and (ii) the sum of the total Revolving Credit
Exposures shall not exceed the total Commitments.  Subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.


 


(b)                                 Whenever
the Borrower desires a Swingline Loan hereunder it shall give written notice
(or telephonic notice promptly confirmed in writing), signed by a Financial
Officer of the Borrower, to the Swingline Lender not later than 1:00 P.M., (New
York City time), on the Business Day of the requested Swingline Loan.  Each such notice shall be irrevocable and
shall specify (i) that a Swingline Loan is requested, (ii) the date of the
requested Swingline Loan (which shall be a Business Day) and (iii) the
principal amount of the Swingline Loan requested.  Each Swingline Loan shall be made as an ABR
Loan and shall have such maturity date as set forth in paragraph (d)
below.  The Swingline Lender shall make
each Swingline Loan available to the Borrower by 3:00 P.M., (New York City
time), on the Business Day of the requested Swingline Borrowing.


 


(c)                                  Each
Swingline Loan shall be in a minimum principal amount of $1,000,000 and integral multiples of $100,000 in excess thereof (or
the remaining amount of the Swingline Committed Amount, if less).


 


(d)                                 The
principal amount of all Swingline Loans shall be due and payable on the earlier
of (i) a date not more than seven (7) Business Days from the date of advance
thereof or (ii) the Maturity Date.  The
Borrower may prepay all or a portion of any Swingline Loan at any time without
premium or penalty.  The Swingline Lender
may, at any time, in its sole discretion, upon one Business Day’s prior written
notice to the Borrower and the Lenders, demand repayment of any Swingline Loan by way of a Revolving Borrowing, in which case the Borrower
shall be deemed to have requested a Revolving Borrowing comprised solely of ABR
Loans in the amount of such Swingline Loan. 
Each Lender hereby irrevocably agrees to make a Loan ratably in
accordance with its respective Commitment as set forth in Section 2.02(a) in
the amount, in the manner and on the date specified in the preceding sentence notwithstanding
(i) the amount of such Revolving Borrowing may not comply with the minimum
amount for ABR Borrowings otherwise required hereunder, (ii) whether any
conditions specified in Section 4.02 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) failure of any such request or
deemed request for an ABR Borrowing to be made by the time otherwise required
hereunder, (v) whether the date of such Revolving Borrowing is a date on which
ABR Borrowings are otherwise permitted to be made hereunder or (vi) any
termination of the Commitments relating thereto immediately prior to or


 


18





















 


contemporaneously
with such Revolving Borrowing.  In the
event that any Revolving Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under any federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect), then each
Lender hereby agrees that it shall forthwith purchase (as of the date such
Revolving Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender its Applicable Percentage of the
outstanding Swingline Loans as shall be necessary to cause each such Lender to
share in such Swingline Loans ratably based upon its Applicable Percentage
(determined before giving effect to any termination of the Commitments pursuant
to Section 2.08), provided that (i) all interest payable on the
Swingline Loans shall be for the account of the Swingline Lender until the date
as of which the respective interests in the outstanding Swingline Loans are
purchased and (ii) at the time any purchase of the respective interests in the
outstanding Swingline Loans pursuant to this sentence is actually made, the
purchasing Lender shall be required to pay to the Swingline Lender, to the extent
not paid to the Swingline Lender by the Borrower in accordance with Section
2.12, interest on the principal amount of the outstanding Swingline Loans
purchased for each day from and including the day upon which such Revolving
Borrowing would otherwise have occurred to but excluding the date of payment
for such purchase, at the rate equal to the Federal Funds Effective Rate.


 


Section 2.05                            Letters
of Credit.


 


(a)                                  General.  Subject to the terms and conditions set forth
herein, each Issuing Bank will issue (or amend, renew or extend) at the request
of the Borrower Letters of Credit for account of the Borrower or the account of
any Subsidiary, in a form acceptable to such Issuing Bank, at any time and from
time to time during the Availability Period. 
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, the applicable Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.  Notwithstanding any language in a letter of
credit application or other agreement, no Lien shall be granted by the Borrower
or any Subsidiary pursuant to such application or agreement.


 


(b)                                 Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  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
applicable Issuing Bank) to an Issuing Bank and the Administrative Agent (not
less than 2 Business Days in advance of the requested date of issuance,
amendment, renewal or extension) a letter of credit application on such Issuing
Bank’s standard form and signed by a Financial Officer of the Borrower
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, the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount
of


 


19





















 


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.  A Letter of Credit shall be
issued, amended, renewed or extended only (x) if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension, (i) the total Revolving Credit Exposures shall not
exceed the total Commitments, (ii) the LC Exposure for each Issuing Bank shall
not exceed such Issuing Bank’s LC Commitment and (iii) the LC Exposure
shall not exceed $200,000,000, (y) if the applicable Issuing Bank has not
received written notice from any Lender, the Agent or the Company, at least one
Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions set forth
in Section 4.02 shall not be satisfied and (z) the applicable Issuing Bank
shall have confirmed with the Administrative Agent that the Borrower’s
representations in clause (x) above are correct.


 


(c)                                  Expiration
Date.  No Letter of Credit shall (i)
have an original expiry date more than one year from the date of issuance
(provided that any such Letter of Credit may contain customary “evergreen”
provisions pursuant to which the expiry date is automatically extended by a
specific time period unless the applicable Issuing Bank gives notice to the beneficiary
of such Letter of Credit at least a specified time period prior to the expiry
date then in effect) and (ii) as originally issued or extended, have an
expiry date extending beyond the date that is five Business Days prior to the
Maturity Date.


 


(d)                                 Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, each
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, 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.  In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the applicable Issuing Bank, such Lender’s Applicable Percentage
of each LC Disbursement made by such Issuing Bank and not reimbursed as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason.  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, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.


 


(e)                                  Reimbursement.  If any Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 12:00 noon (New York City time) on the
date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m.


 


20





















 


(New York City time) on
such date, and otherwise such payment shall be made not later than
12:00 noon (New York City time) on the Business Day immediately following
the day such notice is received by the Borrower. Unless the Borrower shall
immediately notify the applicable Issuing Bank and the Administrative Agent of
its intent to otherwise reimburse such Issuing Bank for an LC Disbursement, the
Borrower shall be deemed to have requested a Revolving Borrowing in the amount
of the LC Disbursement as provided in paragraph (f) below, the proceeds of
which will be used to satisfy its reimbursement obligation.  If the LC Disbursement is not reimbursed as
provided above, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice,
each Lender shall pay to the Administrative Agent its Applicable Percentage of
the payment then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis  mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank the amounts so received by it from the Lenders.  Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders
and such Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this
paragraph to reimburse an Issuing Bank for any LC Disbursement (other than the
funding of a Revolving Borrowing as contemplated in paragraph (f) below) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


 


(f)                                    Repayment
with Revolving Loans.  On any day on
which the Borrower shall have requested, or been deemed to have requested, a
Revolving Borrowing to reimburse an LC Disbursement, the Administrative Agent
shall give notice to the Lenders that a Revolving Borrowing has been requested
or deemed requested in connection with an LC Disbursement, in which case a
Revolving Borrowing comprised entirely of ABR Loans (each such Borrowing, a “Mandatory
Borrowing”) shall be immediately made (without giving effect to any
termination of the Commitments hereunder) ratably by the Lenders based on each
Lender’s respective Applicable Percentage of the total Commitments (determined
before giving effect to any termination of the Commitments hereunder) and the
proceeds thereof shall be paid directly to the Administrative Agent, for the
benefit of the applicable Issuing Bank, for application to the applicable LC
Disbursement.  Each Lender hereby
irrevocably agrees to make its Revolving Loan immediately upon any such request
or deemed request on account of each Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the same date notwithstanding
(i) the amount of the Mandatory Borrowing may not comply with the minimum
amount for ABR Borrowings otherwise required hereunder, (ii) whether any
conditions specified in Section 4.02 are then satisfied, (iii) whether a
Default or Event of Default then exists, (iv) failure of any such request or
deemed request for an ABR Borrowing to be made by the time otherwise required
hereunder, (v) the date of the Mandatory Borrowing or (vi) any reduction in the
total Commitments after any such Letter of Credit may have been drawn upon.


 


21





















 


(g)                                 Obligations
Absolute.  The Borrower’s obligation
to reimburse LC Disbursements as provided in paragraph (e) 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 this Credit
Agreement, or any term or provision therein;


 


(ii)                                  any
amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit or this Credit Agreement;


 


(iii)                               the
existence of any claim, setoff, defense or other right that the Borrower, any
other party guaranteeing, or otherwise obligated with, the Borrower, any
Subsidiary or other Affiliate thereof or any other Person may at any time have
against the beneficiary under any Letter of Credit, the applicable Issuing
Bank, the Administrative Agent or any Lender or any other Person, whether in
connection with this Agreement or any other related or unrelated agreement or
transaction;


 


(iv)                              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;


 


(v)                                 payment
by the applicable Issuing Bank under a Letter of Credit against presentation of
a draft or other document that does not comply with the terms of such Letter of
Credit; and


 


(vi)                              any
other act or omission to act or delay of any kind of the applicable Issuing
Bank, the Lenders, the Administrative Agent or any other Person or any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of the Borrower’s obligations hereunder.


 


provided
that (i) the Borrower shall not be obligated to reimburse any Issuing Bank for
any payment or indemnify such Issuing Bank for any wrongful dishonor or any
other matter to the extent resulting from acts or omissions constituting gross
negligence or willful misconduct by such Issuing Bank, (ii) the Borrower shall
not be obligated to reimburse any Lender for any payment or indemnify any
Lender for any matter to the extent resulting from acts or omissions
constituting gross negligence or willful misconduct by such Lender and (iii)
the Lenders shall not be obligated to reimburse any Issuing Bank for any
payment or indemnify such Issuing Bank for any wrongful dishonor or any other
matter to the extent resulting from acts or omissions constituting gross
negligence or willful misconduct by such Issuing Bank.


 


Nothing in this Agreement
shall be construed to excuse any Issuing Bank 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


 


22





















 


applicable law) suffered
by the Borrower that are caused by such Issuing Bank’s failure to exercise the
agreed standard of care (as set forth below) in determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof.  The parties hereto expressly
agree that each Issuing Bank shall have exercised the agreed standard of care
in the absence of gross negligence or willful misconduct on the part of such
Issuing Bank and if performed in accordance with the standards of care
specified in the Uniform Commercial Code of the State of New York and The Uniform
Customs and Practice for Documentary Credits.


 


(h)                                 Disbursement
Procedures.  The applicable Issuing
Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit issued by
it.  Such Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank 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 Bank and the Lenders with respect to any
such LC Disbursement.


 


(i)                                     Interim
Interest.  If the applicable Issuing
Bank 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, for each day from and including the
date such LC Disbursement is made to but excluding the date that such LC
Disbursement is reimbursed, at the rate per annum then applicable to ABR
Loans.  Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank shall be for
the account of such Lender to the extent of such payment.


 


(j)                                     Replacement
of an Issuing Bank.  Any Issuing Bank
may be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank.  The Administrative Agent shall
notify the Lenders of any such replacement of any Issuing Bank.  At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of
the replaced Issuing Bank pursuant to Section 2.11(c).  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.


 


(k)                                  Cash
Collateralization.  If any Event of
Default shall occur and be continuing, on the Business Day that the Borrower
receives notice from the


 


23





















 


Administrative Agent or
the Required Lenders (or, if the maturity of the Loans has been accelerated,
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an amount
in cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest and fees thereon; 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 payment and performance of the
obligations of the Borrower under this Agreement.  The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account.  Other than any income earned on
the investment of such deposits in Cash Equivalents, which investments the
Administrative Agent agrees to make at the Borrower’s risk and expense, such
deposits shall not otherwise bear interest. 
Interest or profits, if any, on such investments shall accumulate in such
account.  Moneys in such account shall be
applied by the Administrative Agent to reimburse each Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time (including, without limitation,
reimbursement of the Lenders with LC Exposure), or, if the maturity of the
Loans has been accelerated (but subject to the consent of Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement.  If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within two Business Days after all Events of Default have been
cured or waived.


 


(l)                                     Letter
of Credit Reports.  The
Administrative Agent shall furnish (i) to each Lender on the first Business Day
of each month a written report summarizing issuance and expiration dates of
Letters of Credit issued during the preceding month and drawings during such
month under all Letters of Credit issued by such Issuing Bank and (ii) to each
Lender on the first Business Day of each calendar quarter a written report
setting forth the average daily aggregate LC Exposure during the preceding
calendar quarter related to all Letters of Credit, in each case with a copy to
the Borrower.


 


Section 2.06                            Funding
of Revolving Borrowings.


 


(a)                                  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 2:00 p.m. (New
York City 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 2.04.  The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in
like funds, to an


 


24





















 


account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Revolving Borrowing Request.


 


(b)                                 Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Revolving Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Revolving
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 Revolving
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 Revolving Borrowing.


 


Section 2.07                            Interest
Elections.


 


(a)                                  Each
Revolving Borrowing initially shall be of the Type specified in the applicable
Revolving Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Revolving Borrowing
Request.  Thereafter, the Borrower may
elect to convert such Revolving Borrowing to a different Type or to continue
such Revolving Borrowing and, in the case of a Eurodollar Borrowing, may elect
Interest Periods therefore, all as provided in this Section.  The Borrower may elect different options with
respect to different portions of the affected Revolving Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Revolving Borrowing, and the Loans comprising each such
portion shall be considered a separate Revolving Borrowing.  This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.


 


(b)                                 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 Revolving
Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving 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
signed by a Financial Officer of the Borrower.


 


25





















 


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


 


(i)                                     the
Revolving 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 Revolving Borrowing (in
which case the information to be specified pursuant to clauses (iii) and
(iv) below shall be specified for each resulting Revolving Borrowing);


 


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


 


(iii)                               whether
the resulting Revolving Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and


 


(iv)                              if
the resulting Revolving Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term “Interest Period.”


 


If any such Interest
Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration.


 


(d)                                 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 Revolving Borrowing.


 


(e)                                  If
the Borrower fails to deliver a timely Interest Election Request with respect
to a Eurodollar Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Revolving Borrowing is repaid as provided herein, at
the end of such Interest Period such Revolving Borrowing shall be continued as
a Eurodollar Borrowing with 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 (i) no
outstanding Revolving Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing
shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.


 


Section 2.08                            Termination
and Reduction of Commitments.


 


(a)                                  Unless
previously terminated, the Commitments shall terminate on the Maturity Date.


 


(b)                                 The
Borrower may at any time terminate, or from time to time reduce, the
Commitments in whole or in part; provided that (i) each reduction
of the Commitments


 


26





















 


shall be in an aggregate
amount not less than $50,000,000 and integral multiples of $10,000,000 in
excess thereof and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans
in accordance with Section 2.10, the Revolving Credit Exposures would
exceed the total Commitments.


 


(c)                                  The
Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section 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.  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.


 


Section 2.09                            Repayment
of Loans; Evidence of Debt.


 


(a)                                  The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan and all interest, fees and other amounts payable hereunder on
the Maturity Date and (ii) to the Swingline Lender, the then unpaid principal
amount of each Swingline Loan on the maturity thereof.


 


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


 


(c)                                  The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount 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 of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.


 


(d)                                 The
entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be conclusive (absent manifest error)
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
accounts 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 Credit
Agreement.


 


27





















 


(e)                                  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 the order of
such Lender and in a form approved by the Administrative Agent and the
Borrower.  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 order of the payee
named therein.


 


Section 2.10                            Prepayment
of Loans.


 


(a)                                  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 Section
2.15 and subject to prior notice in accordance with paragraph (b) of this
Section.


 


(b)                                 The
Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy) of any prepayment hereunder (A) in the case of prepayment of a
Eurodollar Borrowing, not later than 12:00 noon (New York City time),
three Business Days before the date of prepayment, (B) in the case of
prepayment of an ABR Borrowing, not later than 12:00 noon (New York City
time), on the date of prepayment or (C) 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 and the principal
amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. 
Promptly following receipt of any such notice relating to a Borrowing,
the Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a 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 2.12.


 


Section 2.11                            Fees.


 


(a)                                  The
Borrower agrees to pay to the Administrative Agent for the 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 Closing Date to but excluding the date on which
such Commitment terminates; provided that, if such Lender continues to
have any Revolving Credit Exposure after its Commitment terminates, then such
facility fee shall continue to accrue on the daily amount of such Lender’s
Revolving 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
Revolving Credit Exposure.  Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur


 


28





















 


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)                                 The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a utilization fee equal to the Applicable Rate in effect from time to
time for each day on which the Commitment Utilization Percentage exceeds 50%,
which fee shall accrue on the daily amount of the Used Commitment of such
Lender for each Excess Utilization Day during the period from and including the
Closing Date to but excluding the date on which such Lender’s Commitment
terminates; provided that, if such Lender continues to have any Revolving
Credit Exposure after its Commitment terminates, then such utilization fee
shall continue to accrue on the daily amount of such Lender’s Revolving Credit
Exposure for each Excess Utilization Day from and including the date on which
its Commitment terminates to but excluding the date on which such Lender ceases
to have any Revolving Credit Exposure. 
Accrued utilization fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any utilization fees accruing after the date
on which the Commitments terminate shall be payable on demand.  All utilization 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)                                  The
Borrower agrees to pay (i) to the Administrative Agent for the 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
for Eurodollar Spreads (as defined under “Applicable Rate”) 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 Closing 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 each Issuing Bank a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily amount of the
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) related to Letters of Credit issued by such Issuing Bank during
the period from and including the Closing 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 Bank’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 accrued through and including the
last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Closing 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 an Issuing Bank 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


 


29





















 


days and shall be payable
for the actual number of days elapsed (including the first day but excluding
the last day).


 


(d)                                 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.


 


(e)                                  All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to an Issuing Bank, in the case of fees
payable to it) for distribution, in the case of facility fees, utilization fees
and participation fees, to the Lenders. 
Fees paid shall not be refundable under any circumstances.


 


Section 2.12                            Interest.


 


(a)                                  The
Loans comprising each ABR Borrowing shall bear interest at a rate per annum
equal to the Alternate Base Rate.


 


(b)                                 The
Loans comprising each Eurodollar Borrowing shall bear interest at a rate per
annum equal to the LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.


 


(c)                                  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 (following the
expiration of any grace period specified in Article VII), whether at stated
maturity, upon acceleration 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 above.


 


(d)                                 Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan; provided that (i) interest accrued pursuant to
paragraph (c) 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 an ABR Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of
any Eurodollar Loan prior to the end of the current Interest Period therefore,
accrued interest on such Loan shall be payable on the effective date of such
conversion and (iv) all accrued interest shall be payable upon termination
of the Commitments.


 


(e)                                  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 or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent
manifest error.


 


30





















 


(f)                                    If
any Lender shall be required under the regulations of the Board to maintain
reserves with respect to liabilities or assets consisting of, or including,
Eurocurrency Liabilities (as defined in Regulation D of the Board), the
Borrower shall pay to the Administrative Agent for the account of such Lender,
additional interest on the unpaid principal amount of each Eurodollar Loan made
to the Borrower by such Lender, from the date of such Loan until such Loan is
paid in full, at an interest rate per annum equal at all times during the
Interest Period for such Eurodollar Loan to the remainder obtained by
subtracting (i) the LIBO Rate for such Interest Period from (ii) the
rate obtained by multiplying LIBO Rate as referred to in clause (i) above
by the Statutory Reserve Rate applicable to such Lender for such Interest
Period.  Such additional interest shall
be determined by such Lender and notified to the Borrower (with a copy to the
Administrative Agent) not later than five Business Days before the next
Interest Payment Date for such Eurodollar Loan, and such additional interest so
notified to the Borrower by any Lender shall be payable to the Administrative
Agent for the account of such Lender on each Interest Payment Date for such
Eurodollar Loan.


 


Section 2.13                            Alternate
Rate of Interest.


 


If
prior to the commencement of any Interest Period for a Eurodollar Borrowing:


 


(a)                                  the
Administrative Agent reasonably determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBO Rate for such Interest Period; or


 


(b)                                 the
Administrative Agent is advised by the Required Lenders that the LIBO Rate for
such Interest Period will not, in their reasonable judgment, adequately and
fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Revolving 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 Revolving Borrowing to, or continuation of any
Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, and
(ii) if any Revolving Borrowing Request requests a Eurodollar Borrowing,
such Revolving Borrowing shall be made as an ABR Borrowing; provided
that if the circumstances giving rise to such notice affect only one Type of
Revolving Borrowings, then the other Type of Revolving Borrowings shall be
permitted.


 


Section 2.14                            Increased
Costs.


 


(a)                                  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 the account of, or credit


 


31





















 


extended by, any Lender
or any Issuing Bank (other than any reserves included in the Statutory Reserve
Rate); or


 


(ii)                                  impose
on any Lender or any Issuing Bank or the London interbank market any other
condition affecting this Credit Agreement or Eurodollar Loans or any Letter of
Credit or participation therein;


 


and the result of any of
the foregoing shall be to increase the cost (except with respect to Excluded
Taxes) to such Lender of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost
(except with respect to Excluded Taxes) to such Lender or such Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable (except to the extent caused by Excluded
Taxes) by such Lender or such Issuing Bank hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender or such Issuing Bank
to be material, then the Borrower will pay to such Lender or such Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b)                                 If
any Lender or any Issuing Bank reasonably 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 Bank’s capital or on the
capital of such Lender’s or such Issuing Bank’s holding company, if any, as a
consequence of this Credit 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 Bank, to a level below that which such Lender or such Issuing Bank or
such Lender’s or such Issuing Bank’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s or such Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing
Bank or such Lender’s or such Issuing Bank’s holding company for any such
reduction suffered.


 


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


 


(d)                                 Failure
or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or
such Issuing Bank’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred
more than six months prior to the date that


 


32





















 


such Lender or such
Issuing Bank, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or such
Issuing Bank’s intention to claim compensation therefore; 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.


 


Section 2.15                            Break
Funding Payments.


 


In the event of
(a) the payment of any principal of any Eurodollar Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.10(b) if such notice is revoked
in accordance herewith two Business Days or less before the specified effective
date), (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.18, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense (but not loss of
profit) attributable to such event.  In
the case of a Eurodollar Loan, the loss to any Lender attributable to any such
event shall be deemed to include an amount reasonably 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 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
LIBO Rate 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 dollar
deposits from other banks in the eurodollar market at the commencement of such
period.  A certificate of any Lender
setting forth 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 2.16                            Taxes.


 


(a)                                  Any
and all payments by or on account of any obligation of the Borrower hereunder
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 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, each Lender or each
Issuing Bank (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


 


33





















 


such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


 


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


 


(c)                                  The
Borrower shall indemnify the Administrative Agent, each Lender, and each
Issuing Bank within 10 days after written demand therefore, 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 Bank, 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 Bank, or by the Administrative Agent on its own behalf or
on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest
error.


 


(d)                                 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)                                  Each
Foreign Lender, on or prior to the date of its execution and delivery of this
Credit Agreement or on the date of the Assumption Agreement or the Assignment
and Acceptance pursuant to which it becomes a Lender, as applicable, shall
provide the Borrower with any form or certificate that is required by any
taxing authority (including, if applicable, a copy of Internal Revenue Service
Forms W-9, W-8BEN or W-8ECI, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service), certifying that such Lender is
exempt from or entitled to a reduced rate of withholding taxes on payments
pursuant to this Credit Agreement. 
Thereafter, each such Lender shall provide additional forms or
certificates (i) to the extent a form or certificate previously provided has
been inaccurate, invalid or otherwise ceases to be effective or (ii) as requested
in writing by the Borrower or the Administrative Agent.  If any Foreign Lender fails to comply with
the provisions of this Section, the Borrower, may, as required by law, deduct
and withhold federal income tax payments from payments to such Lender under
this Credit Agreement.  The obligation of
the Lenders under this Section shall survive the payment of all obligations and
the resignation or replacement of the Administrative Agent.


 


(f)                                    Any
Lender claiming any additional amounts payable pursuant to this Section 2.16
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to select or change the jurisdiction of its
applicable lending office if the making of such a selection or change would avoid
the need for, or reduce the


 


34





















 


amount of, any such
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender.


 


(g)                                 If
any Lender or the Administrative Agent, as the case may be, obtains a refund of
any Tax for which payment has been made pursuant to this Section 2.16, which
refund in the good faith judgment of such Lender or the Administrative Agent,
as the case may be, (and without any obligation to disclose its tax records) is
allocable to such payment made under this Section 2.16, the amount of such
refund (together with any interest received thereon and reduced by reasonable
costs incurred in obtaining such refund) promptly shall be paid to the Borrower
to the extent payment has been made in full by the Borrower pursuant to this
Section 2.16.


 


Section 2.17                            Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.


 


(a)                                  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 2.14, 2.15 or 2.16, or otherwise) prior to 1:00 P.M. (New
York City 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 its offices at 388 Greenwich Street, New York, New
York, except payments to be made directly to an Issuing Bank as expressly
provided herein and except that payments pursuant to Sections 2.14, 2.15,
2.16 and 9.03 shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any
such payments received by it for the 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 payments hereunder shall
be made in dollars.


 


(b)                                 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 Distributions then due to such
parties.


 


(c)                                  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 Loans or participations in LC Disbursements resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loans
and participations in LC Disbursements and accrued interest thereon than the proportion
received by any other


 


35





















 


Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in LC Disbursements 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 Loans and participations
in LC Disbursements; 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 Credit 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.


 


(d)                                 Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders or an Issuing Bank, as the case may be, hereunder that
the Borrower will not make such payment, the Administrative Agent may assume
that the Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders the amount
due.  In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Banks,
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
Bank 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.


 


(e)                                  If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(d) or (e), 2.06(a) or 2.17(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender’s obligations under such Sections until
all such unsatisfied obligations are fully paid.


 


Section 2.18                            Mitigation
Obligations; Replacement of Lenders.


 


(a)                                  If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, 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,


 


36





















 


branches or affiliates,
if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to
Section 2.14 or 2.16, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. 
The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


(b)                                 If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, 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 Credit
Agreement 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, 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 and participations in LC Disbursements, 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 2.14 or payments required to be made pursuant to
Section 2.16, 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.


 


Section 2.19.                         Increase
in the Aggregate Commitments.


 


(a)                                  The
Borrower may, at any time but in any event not more than once in any calendar
year prior to the Maturity Date, by notice to the Administrative Agent, request
that the aggregate amount of the Commitments be increased by an amount of
$10,000,000 or an integral multiple thereof (each a “Commitment Increase”)
to be effective as of a date that is at least 90 days prior to the scheduled
Maturity Date (the “Increase Date”) as specified in the related notice
to the Administrative Agent; provided, however that (i) in no
event shall the aggregate amount of the Commitments at any time exceed
$1,250,000,000 and (ii) on the date of any request by the Borrower for a
Commitment Increase and on the related Increase Date, (x) the representations
and warranties in Section 3 shall be true and correct and (y) no Default shall
have occurred and be continuing.


 


(b)                                 The
Administrative Agent shall promptly notify the Lenders of a request by the
Borrower for a Commitment Increase, which notice shall include (i) the proposed
amount of such requested Commitment Increase, (ii) the proposed Increase Date
and (iii) the date by which Lenders wishing to participate in the Commitment
Increase must commit to an increase in


 


37





















 


the amount of their
respective Commitments (the “Commitment Date”).  Each Lender that is willing to participate in
such requested Commitment Increase (each an “Increasing Lender”) shall,
in its sole discretion, give written notice to the Administrative Agent on or
prior to the Commitment Date of the amount by which it is willing to increase
its Commitment.  If the Lenders notify
the Administrative Agent that they are willing to increase the amount of their
respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be
allocated among the Lenders willing to participate therein in such amounts as
are agreed between the Borrower and the Administrative Agent.


 


(c)                                  Promptly
following each Commitment Date, the Administrative Agent shall notify the
Borrower as to the amount, if any, by which the Lenders are willing to
participate in the requested Commitment Increase.  If the aggregate amount by which the Lenders
are willing to participate in any requested Commitment Increase on any such
Commitment Date is less than the requested Commitment Increase, then the
Borrower may extend offers to one or more Persons (other than the Borrower or
any of its Affiliates) approved by the Administrative Agent, the Borrower and
each Issuing Bank (such approval not to be unreasonably withheld) (each, an “Eligible
Assignee”) to participate in any portion of the requested Commitment
Increase that has not been committed to by the Lenders as of the applicable
Commitment Date; provided, however, that the Commitment of each
such Eligible Assignee shall be in an amount of $5,000,000 or more.


 


(d)                                 On
each Increase Date, each Eligible Assignee that accepts an offer to participate
in a requested Commitment Increase in accordance with Section 2.19(b) (each such
Eligible Assignee, an “Assuming Lender”) shall become a Lender party to
this Agreement as of such Increase Date and the Commitment of each Increasing
Lender for such requested Commitment Increase shall be so increased by such
amount (or by the amount allocated to such Lender pursuant to the last sentence
of Section 2.19(b))
as of such Increase Date; provided, however, that the
Administrative Agent shall have received on or before such Increase Date the
following, each dated such date:


 


(i)                                     (A)
certified copies of resolutions of the Board of Directors of the Borrower
approving the Commitment Increase and the corresponding modifications to this
Agreement and (B) an opinion of counsel for the Borrower (which may be in-house
counsel), in form and substance satisfactory to the Administrative Agent;


 


(ii)                                  an
assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Borrower and the Administrative Agent (each an “Assumption
Agreement”), duly executed by such Assuming Lender, the Administrative
Agent and the Borrower; and


 


(iii)                               confirmation
from each Increasing Lender of the increase in the amount of its Commitment in
a writing satisfactory to the Borrower and the Administrative Agent.


 


On each Increase Date, upon fulfillment of the
conditions set forth in the immediately preceding sentence of this Section 2.19(d), the
Administrative Agent shall notify the Lenders (including,


 


38





















 


without limitation, each Assuming Lender) and the
Borrower, on or before 1:00 P.M. (New York City time), by telecopier, of the
occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date.


 


(e)                                  On
the Increase Date, if any Loans are then outstanding, the Borrower shall borrow
from all or certain of the Lenders and/or (subject to compliance by the
Borrower with Section 2.15) prepay Loans of all or certain of the Lenders such
that, after giving effect thereto, the Loans (including, without limitation,
the Types and Interest Periods thereof) shall be held by the Lenders (including
for such purposes the Increasing Lenders and the Assuming Lenders) ratably in
accordance with their respective Commitments. 
On and after each Increase Date, the Applicable Percentage of each
Lender’s participation in Letters of Credit and Loans from draws under Letters
of Credit shall be calculated after giving effect to each such Commitment
Increase.


 


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 result in 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, shareholder action.  This Credit Agreement and each promissory
note, if any, has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.


 


Section 3.03                            Governmental
Approvals; No Conflicts.


 


The Transactions
(a) do not require any material 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


 


39





















 


default under any material indenture, agreement or other instrument
binding upon the Borrower or any of its Subsidiaries or any of their respective
assets, or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries, 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)                                  The
Borrower has heretofore furnished to the Lenders (i) its consolidated
balance sheet and statements of operations, shareholders’ equity and cash flows
as of and for the fiscal year ended April 30, 2004,
reported on by PricewaterhouseCoopers LLP,
independent public accountants, and (ii) its consolidated balance sheet
and statements of operations and cash flows as of and for the fiscal quarters
ended July 30, 2004 and October 29, 2004, signed by its chief financial
officer.  Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated 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 statements
referred to in clause (ii) above.


 


(b)                                 There
has been no material adverse change in the business, assets, operations, or
financial condition of the Borrower and its Subsidiaries, taken as a whole,
from those disclosed in the Borrower’s Form 10-K for the fiscal year ended
April 30, 2004, other than as disclosed in the Borrower’s quarterly report on
Form 10-Q for its fiscal quarters ending on July 30, 2004 and October 29,
2004 and the Borrower’s current reports on Form 8-K dated December 6, 2004 and
January 6, 2005.


 


Section 3.05                            Properties.


 


(a)                                  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,
except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes.


 


(b)                                 Except
for Disclosed Matters, 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 result in a Material Adverse
Effect.


 


Section 3.06                            Litigation
and Environmental Matters.


 


(a)                                  There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority 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 result in a


 


40





















 


Material Adverse Effect
(other than the Disclosed Matters) or (ii) which in any manner draws into
question the validity or enforceability of this Credit Agreement.


 


(b)                                 Except
for the Disclosed Matters or except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
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)                                  Since
the date of this Credit Agreement, there has been no change in the status of
the Disclosed Matters that, individually or in the aggregate, has resulted in,
or could reasonably be expected to result in a Material Adverse Effect.


 


Section 3.07                            Compliance
with Laws and Agreements.


 


(a)                                  Each
of the Borrower and its Subsidiaries is in compliance with all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.  No Default has occurred and is continuing.


 


(b)                                 Neither
the Borrower nor any Subsidiary is in violation of any law, rule or regulation,
or in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default would be reasonably be
expected to result in a Material Adverse Effect.


 


Section 3.08                            Investment
and Holding Company Status.


 


Neither the Borrower nor
any of its Subsidiaries is (a) an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a “holding
company” as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.


 


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 (taking into account any extensions granted
by the applicable taxing authority) 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 the Borrower
or such Subsidiary, as applicable, 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 result in a Material Adverse Effect.


 


41





















 


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 result in 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 $100,000,000 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 $100,000,000
the fair market value of the assets of all such underfunded Plans.


 


Section 3.11                            Disclosure.


 


The Borrower has
disclosed (which disclosure includes all filings by the Borrower pursuant to
the Securities Exchange Act of 1934) to the Lenders all agreements, instruments
and corporate or other restrictions to which it or any of its Subsidiaries is
subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect.  None of the reports, financial
statements, certificates or other information furnished in writing by or on
behalf of the Borrower to the Administrative Agent or any Lender for use
specifically in connection with the negotiation of this Credit Agreement or
delivered hereunder (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, 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                            Federal
Regulations.


 


No part of the proceeds
of any Loans will be used in any transaction or for any purpose which violates
the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System, as now and from time to time hereafter in effect.  If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of Form FR U-1 referred to in said Regulation U.


 


Section 3.13                            Purpose
of Loans.


 


The proceeds of the Loans
and Letters of Credit shall be used to (i) refinance the Existing Credit
Agreement and (ii) finance any lawful general corporate purpose, including
acquisitions, and working capital.


 


42





















 


Section 3.14                            Significant
Subsidiaries.


 


Set forth on Schedule
3.14 is a complete and accurate list of all Significant Subsidiaries as of
the Closing Date.


 


ARTICLE IV


 


Conditions


 


Section 4.01                            Closing
Conditions.


 


This Credit Agreement
shall become effective on the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):


 


(a)                                  The
Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Credit 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 of
this Credit Agreement) that such party has signed a counterpart of this Credit
Agreement.


 


(b)                                 The
Administrative Agent shall have received a favorable written opinion or
opinions (addressed to the Administrative Agent and the Lenders and dated the
Closing Date) of (i) Fredrikson & Bryon, P.A., counsel for the Borrower and
the Guarantors and (ii) of Senior Legal Counsel to the Borrower and the
Guarantors, and covering such other matters relating to the Borrower, the
Guarantors, this Credit Agreement or the Transactions as the Required Lenders
shall reasonably request.  The Borrower
hereby requests such counsel to deliver such opinion.


 


(c)                                  The
Administrative Agent shall have received 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 and each of the
Guarantors, the authorization of the Transactions and any other legal matters
relating to the Borrower, the Guarantors, this Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and its
counsel.


 


(d)                                 The
Administrative Agent shall have received a certificate, dated the Closing Date
and signed by the President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and
(b) of Section 4.02.


 


(e)                                  The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Closing Date, including, without limitation the fees
set forth in the Fee Letter and, to the extent invoiced, the reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.


 


(f)                                    The
commitments under the Existing Credit Agreement shall have been terminated and
all amounts owing thereunder shall have been paid.


 


43





















 


Section 4.02                            Each
Credit Event.


 


The
obligation of each Lender to make a Loan on the occasion of any Revolving
Borrowing, each Issuing Bank to issue, amend, renew or extend any Letter of
Credit and the Swingline Lender to make a Swingline Loan on the occasion of any
Swingline Borrowing is subject to the satisfaction of the following conditions:


 


(a)                                  The
representations and warranties of the Borrower set forth in this Credit
Agreement shall be true and correct in all material respects on and as of the
date of, and after giving effect to, such Borrowing and after giving effect to,
the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable; provided, that, the representations and warranties contained
in Sections 3.04(b), 3.06 (other than clause (a)(ii) thereof), 3.07(a) and
3.10 shall be deemed made, and shall be required to be true and correct, only
on the Closing Date.


 


(b)                                 At
the time of and immediately after giving effect to such Borrowing 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 paragraphs (a) and (b) of this Section.


 


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
to the Administrative Agent (with copies for each Lender):


 


(a)                                  within
100 days after the end of each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements of operations, shareholders’
equity and cash flows 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 consolidated Subsidiaries on a


 


44





















 


consolidated basis in
accordance with GAAP (the Lenders agree that the Borrower’s obligations under
this paragraph (a) will be satisfied in respect of any fiscal year by
delivery to the Administrative Agent, with copies for each Lender, within 100
days after the end of such fiscal year of its annual report for such fiscal
year on Form 10-K as filed with the SEC);


 


(b)                                 within
55 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower (including the fiscal quarter ending on January 28,
2005), its consolidated balance sheet and related statements of operations and
cash flows 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 the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes (the Lenders agree that the Borrower’s obligations under
this paragraph (b) will be satisfied in respect of any fiscal quarter by
delivering to the Administrative Agent, with copies for each Lender, within 55
days after the end of such fiscal quarter of its quarterly report for such
fiscal quarter on Form 10-Q as filed with the SEC);


 


(c)                                  concurrently
with any delivery of financial statements under paragraph (a) or (b)
above, 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 Section 6.01 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(a)(i) and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;


 


(d)                                 promptly
after the same become publicly available or upon transmission or receipt
thereof, copies of all periodic and other reports, proxy statements and other
materials filed by the Borrower or any Subsidiary with the SEC, or any Governmental
Authority succeeding to any or all of the functions of the SEC, or with any
national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be, provided that, with respect
to materials filed with any national securities exchange, only material filings
shall be required to be delivered pursuant to this paragraph (d); and


 


(e)                                  promptly
following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Subsidiary, or compliance with the terms of this Credit Agreement, as the
Administrative Agent or any Lender (acting through the Administrative Agent)
may reasonably request.


 


45





















 


Section 5.02                            Notices
of Material Events.


 


The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of, but in
any event not later than five Business Days after, the following:


 


(a)                                  the
occurrence of any Default;


 


(b)                                 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
$100,000,000;


 


(c)                                  the
non-compliance with any contractual obligation or requirement of law that is
not currently being contested in good faith by appropriate proceedings if all
such non-compliance in the aggregate could reasonably be expected to have a
Material Adverse Effect;


 


(d)                                 the
revocation of any license, permit, authorization, certificate, qualification or
accreditation of the Borrower or any Subsidiary by any Governmental Authority
if all such revocations in the aggregate could reasonably be expected to have a
Material Adverse Effect;


 


(e)                                  a
change in rating for the Index Debt by either Moody’s or S&P; and


 


(f)                                    any
other development that results in, or could reasonably be expected to result
in, 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 its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation, dissolution or stock or asset
sale permitted under Section 6.04.


 


Section 5.04                            Payment
of Obligations.


 


The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect
before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside
on its books adequate reserves with respect thereto in accordance with GAAP and


 


46





















 


(c) the failure to
make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.


 


Section 5.05                            Maintenance
of Properties; 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) maintain, with financially sound
and reputable insurance companies, insurance in such amounts and against such
risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations or maintain a system or
systems of self-insurance or assumption of risk which accords with the
practices of similar businesses.


 


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 are 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 and as often as reasonably requested.


 


Section 5.07                            Compliance
with Laws.


 


The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.


 


Section 5.08                            Use
of Proceeds.


 


The proceeds of the Loans
will be used for the purposes described in Section 3.13.  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.


 


Section 5.09                            Maintenance
of Accreditation, Etc.


 


The Borrower will
preserve and maintain, and cause each of its Subsidiaries to preserve and
maintain, all licenses, permits, authorizations, certifications and
qualifications (including, without limitation, those qualifications with
respect to solvency and capitalization) required, except where the failure to
do so would not result in a Material Adverse Effect.


 


47





















 


Section 5.10                            Additional Subsidiary
Guarantors.


 


The
Borrower will cause each of its Significant Subsidiaries, whether newly formed,
after acquired or otherwise existing, to promptly become a Guarantor hereunder
by way of execution of a Joinder Agreement in the form of Exhibit B.


 


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                            Consolidated Tangible
Net Worth.


 


The
Consolidated Tangible Net Worth shall at all times be greater than or equal to
$1,040,000,000.


 


Section 6.02                            Indebtedness.


 


The
Borrower will  not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any other
Indebtedness or liability on account of borrowed money, represented by any
notes, bonds, debentures or similar obligations, or on account of the deferred
purchase price of any property, or any other deposits, advance or progress
payments under contracts, except:


 


(a)                                  Indebtedness
arising or existing under this Credit Agreement and the other Credit Documents;


 


(b)                                 Indebtedness
existing on the date hereof and set forth in Schedule 6.02 and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof;


 


(c)                                  Indebtedness
of the Borrower and its Subsidiaries incurred after the Closing Date consisting
of Capital Lease Obligations or Indebtedness incurred to provide all or a
portion of the purchase price or cost of construction of an asset provided that
(i) such Indebtedness when incurred shall not exceed the purchase price or cost
of construction of such asset and (ii) no such Indebtedness shall be refinanced
for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing;


 


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


 


(e)                                  Indebtedness
secured by Liens to the extent permitted under Section 6.03;


 


 


48





















 


(f)                                    other unsecured Indebtedness of the Borrower and its
Subsidiaries; provided that such Indebtedness is not senior in right of
payment to the payment of the Indebtedness arising or existing under this
Credit Agreement and the other Credit Documents.


 


Section 6.03                            Liens.


 


The
Borrower will not, and will not permit any Subsidiary 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 Liens securing
obligations in an aggregate amount not exceeding at any time 20% of
Consolidated Tangible Net Worth as at the end of the immediately preceding
fiscal quarter of the Borrower.


 


Section 6.04                            Fundamental Changes.


 


The
Borrower will not, and will not permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its assets,
or all or substantially all of the stock of any of its Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) any Person may merge
into the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Person, including any Affiliate, may merge with any
Subsidiary in a transaction in which the surviving entity is a Subsidiary,
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its
assets or stock to the Borrower or to another Subsidiary, (iv) any
Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may
sell, transfer, lease or otherwise dispose of the assets or stock of any
Subsidiary if, in each case, 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, (v) the Borrower and its Subsidiaries may
sell immaterial businesses, including Subsidiaries, in the ordinary course of
business and (vi) any Subsidiary formed for the purpose of acquiring a Person
or a minority interest in any Person may merge into such Person.


 


Section 6.05                            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) in the ordinary
course of business 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 unrelated third parties, (b) transactions between or among the
Borrower and its Subsidiaries not involving any other Affiliates, (c)
contributions to the Medtronic Foundation in amounts consistent with past
practices or (d) as otherwise permitted by this Credit Agreement.


 


49





















 


Section 6.06                            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 to the Borrower
(directly or indirectly through Subsidiaries) and ratably to minority
shareholders 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; provided that
(i) the foregoing shall not apply to restrictions and conditions imposed
by law, rule, regulation or regulatory administrative agreement or
determination or by this Credit Agreement, and (ii) the foregoing shall
not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder.


 


Section 6.07                            Business Activity.


 


The
Borrower will not, nor will it permit any Significant Subsidiary to, alter the
character of its business in any material respect from that conducted as of the
Closing Date.


 


Section 6.08                            Restricted Payments.


 


The
Borrower will not, nor will it permit any Subsidiary to, directly or
indirectly, declare, order, make or set apart any sum for or pay any Restricted
Payment, except distributions in respect of the capital stock of such Person or
the redemption, retirement, purchase or other acquisition of the capital stock
of such Person (or any warrant, option or other rights with respect to any
shares of capital stock (now or hereafter outstanding) of such Person) if no
Default has occurred and is continuing or would result from such action.


 


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 to 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 (or any Guarantor shall fail to pay on the Guaranty in
respect of any of the foregoing or in respect of any other Guaranty obligations
thereunder);


 


(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 Credit Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five
Business Days;


 


50





















 


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


 


(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 Credit Agreement (other than those specified in
clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent (given at the request of any Lender) to the Borrower;


 


(f)                                    the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable
(subject to any applicable grace periods or 
notice requirements);


 


(g)                                 any
event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with the giving
of notice if required) 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 (i) secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness or (ii) the Indebtedness under this Agreement;


 


(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 Significant Subsidiary 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 Significant Subsidiary or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;


 


(i)                                     the
Borrower or any Significant Subsidiary 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,


 


51





















 


(iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Significant Subsidiary 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 Significant Subsidiary shall become
unable, admit in writing its inability to pay, or fail generally to pay its
debts as they become due;


 


(k)                                  one
or more judgments or decrees shall be rendered against the Borrower, any
Significant Subsidiary or any combination thereof and the same shall not have
been paid, vacated, discharged, stayed or bonded pending appeal within 75 days
from the entry thereof that involves in the aggregate a liability (not paid or
fully covered by insurance) of $100,000,000 or more;


 


(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 result in a Material Adverse Effect;


 


(m)                               a Change in Control of the Borrower shall occur; or


 


(n)                                 the Guaranty or any provision thereof shall cease to be in
full force and effect (other than in accordance with its terms) or any
Guarantor or any Person acting by or on behalf of any Guarantor shall deny or
disaffirm any Guarantor’s obligations under the Guaranty;


 


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 (and the Commitments shall terminate), 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.


 


52





















 


ARTICLE VIII


 


The Administrative Agent


 


Section 8.01                            Appointment and
Authorization of Administrative Agent.


 


Each
of the Lenders and each Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent 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, together with such actions and
powers as are reasonably incidental thereto.


 


The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein.  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 that the Administrative Agent is required to exercise in
writing by the Required Lenders, and (c) except as expressly set forth
herein, 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.


 


Section 8.02                            Notice of Default.


 


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 Credit Agreement,
(ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth
herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Credit Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.


 


Section 8.03                            Reliance by
Administrative Agent.


 


The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing 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


 


53





















 


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.


 


Section 8.04                            Delegation of Duties.


 


The
Administrative Agent may perform any and all 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.


 


Section 8.05                            Successor Administrative
Agent.


 


The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to
the Lenders.  If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor administrative agent for the Lenders which successor
administrative agent shall be consented to by the Borrower at all times other
than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). 
If no successor administrative agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders. 
Upon the acceptance of its appointment as successor administrative agent
hereunder, such successor administrative agent shall succeed to all the rights,
powers and duties of the retiring Administrative Agent and the term “Administrative
Agent” shall mean such successor administrative agent and the retiring
Administrative Agent’s appointment, powers and duties as Administrative Agent
shall be terminated.  After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article and Section 9.03 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. 
If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative Agent’s
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above.


 


Section 8.06                            Credit Decision;
Disclosure of Information by 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 Credit Agreement. 
Each Lender also acknowledges that it will, independently and without
reliance


 


54





















 


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 Credit Agreement, any
related agreement or any document furnished hereunder or thereunder.


 


Section 8.07                            Indemnification of
Administrative Agent.


 


Whether
or not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed
by or on behalf of the Borrower or any Guarantor and without limiting the
obligation of the Borrower or any Guarantor to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Liabilities resulting from such Person’s gross negligence or
willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this
Section.  Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including attorney
costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Credit Agreement,
any other Credit Document, or any document contemplated by or referred to
herein, to the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Borrower. 
The undertaking in this Section shall survive termination of the
Commitments, the payment of all obligations hereunder and the resignation or
replacement of the Administrative Agent.


 


Section 8.08                            Administrative Agent in
its Individual Capacity.


 


CUSA and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with the Borrower and
each of the Guarantors and their respective Affiliates as though CUSA were not
the Administrative Agent or an Issuing Bank hereunder and without notice to or
consent of the Lenders.  The Lenders
acknowledge that, pursuant to such activities, CUSA or its Affiliates may
receive information regarding the Borrower, any of the Guarantors or their
respective Affiliates (including information that may be subject to
confidentiality obligations in favor of such Person or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them.  With
respect to its Loans, CUSA shall have the same rights and powers under this
Credit Agreement as any other Lender and may exercise such rights and powers as
though it were not the Administrative Agent or an Issuing Bank, and the terms “Lender”
and “Lenders” include CUSA in its individual capacity.


 


55





















 


ARTICLE IX


 


Miscellaneous


 


Section 9.01                            Notices.


 


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


 


	
  (i)

  	
   

  	
  if to the
  Borrower:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Medtronic, Inc.

  
	
   

  	
   

  	
   

  	
  710 Medtronic Parkway

  
	
   

  	
   

  	
   

  	
  Minneapolis, MN 55432-5604,

  
	
   

  	
   

  	
   

  	
  Attention:
  Treasury Department, Mail Stop LC480

  
	
   

  	
   

  	
   

  	
  Telecopy
  No. (763) 505-2700

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Medtronic, Inc.

  
	
   

  	
   

  	
   

  	
  710 Medtronic Parkway

  
	
   

  	
   

  	
   

  	
  Minneapolis, MN 55432-5604,

  
	
   

  	
   

  	
   

  	
  Attention:
  General Counsel, Mail Stop LC400

  
	
   

  	
   

  	
   

  	
  Telecopy No.
  (763) 572-5459

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  if to the
  Administrative Agent, CUSA or its Affiliates as an Issuing Bank and/or the
  Swingline Lender:

  
	
   

  	
   

  	
   

  
	
   

  	
  Citicorp USA, Inc.

  
	
   

  	
  Two Penns Way

  
	
   

  	
  New Castle, Delaware  19720

  
	
   

  	
  Attn:  Bank Loan Syndications

  
	
   

  	
  Telephone:

  
	
   

  	
  Telecopy:  212-

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  if
  to any other 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.  All notices and other communications given to
any party hereto in accordance with the provisions of this Credit Agreement
shall be deemed to have been given on the date of receipt.


 


56





















 


(b)                                 So
long as CUSA or any of its Affiliates is the Administrative Agent, materials
required to be delivered pursuant to Section 5.01(a), (b), and (d) shall
be delivered to the Administrative Agent in an electronic medium in a format
acceptable to the Administrative Agent and the Lenders by e-mail at
oploanswebadmin@citigroup.com.  The
Borrower agrees that the Administrative Agent may make such materials
(collectively, the “Communications”) available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system (the “Platform”).  The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Administrative Agent nor any of its Affiliates warrants the
accuracy, adequacy or completeness of the Communications or the Platform and
each expressly disclaims liability for errors or omissions in the
Communications or the Platform.  No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement
of third party rights or freedom from viruses or other code defects, is made by
the Administrative Agent or any of its Affiliates in connection with the
Platform.


 


(c)                                  Each Lender agrees that notice to it (as provided
in the next sentence) (a “Notice”) specifying that any Communications
have been posted to the Platform shall constitute effective delivery of such
information, documents or other materials to such Lender for purposes of this
Agreement; provided that if requested by any Lender the Administrative Agent shall deliver a copy of
the Communications to such Lender by email or telecopier.  Each Lender agrees (i) to notify the
Administrative Agent in writing of such Lender’s e-mail address to which a
Notice may be sent by electronic transmission (including by electronic communication)
on or before the date such Lender becomes a party to this Agreement (and from
time to time thereafter to ensure that the Administrative Agent has on record
an effective e-mail address for such Lender) and (ii) that any Notice may be
sent to such e-mail address.


 


Section 9.02                            Waivers; Amendments.


 


(a)                                  No
failure or delay by the Administrative Agent, any Issuing Bank 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 Banks 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 Credit Agreement or consent to any departure by the Borrower
or any Guarantor 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 Bank may have had notice or
knowledge of such Default at the time.


 


57





















 


(b)                                 Neither
this Credit 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 directly affected thereby, (iii) 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 directly affected
thereby, (iv) change Section 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or
the definition of “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, (vi) release all or substantially
all of the Guarantors from their obligations under this Credit Agreement,
without the written consent of each Lender or (vii) change or amend Section 2.04
without the consent of the Swingline Lender; provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent or any Issuing Bank hereunder without the prior
written consent of the Administrative Agent or such Issuing Bank, as the case
may be.


 


Section 9.03                            Expenses; Indemnity;
Damage Waiver.


 


(a)                                  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 outside counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Credit Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated),
(ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of
Credit issued by such Issuing Bank or any demand for payment thereunder and
(iii) all reasonable out-of-pocket expenses incurred by the Administrative
Agent, any Issuing Bank or any Lender, including the fees and disbursements of
any outside counsel for the Administrative Agent, any Issuing Bank or any Lender,
in connection with the enforcement or protection of its rights in connection
with this Credit Agreement, 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)                                 The
Borrower shall indemnify the Administrative Agent, each Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such


 


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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 and disbursements of any outside 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 Credit
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 actual or proposed use of the
proceeds therefrom (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit issued by it 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, whether
brought by the Borrower, any Guarantor or any of their respective directors,
shareholders or creditors, an Indemnitee or any other Person, and regardless of
whether any Indemnitee is a party thereto (all of the foregoing, collectively,
the “Indemnified Liabilities”); 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 to have resulted from the gross negligence or willful
misconduct of such Indemnitee.


 


(c)                                  To
the extent that the Borrower fails to pay any amount required to be paid by it
to the Administrative Agent or any Issuing Bank under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative
Agent or such Issuing Bank 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 or such Issuing Bank in its capacity as such.


 


(d)                                 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
Credit Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.


 


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


 


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Section 9.04                            Successors and Assigns.


 


(a)                                  The
provisions of this Credit Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that neither the Borrower nor any Guarantor may 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 or any Guarantor without such consent shall be null and void); provided,
however, that no such consent shall be required for any transaction permitted
under Section 6.04.  Nothing in this
Credit 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 Related
Parties of each of the Administrative Agent, the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Credit
Agreement.


 


(b)                                 Any
Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Credit Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund with respect thereto, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of
a Commitment or any Lender’s obligations in respect of its LC Exposure, the
Issuing Banks) must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld), (ii) except in the case of an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund with respect
thereto or an assignment of the entire remaining amount of the assigning Lender’s
Commitment, the amount of the Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000, except in the case of an assignment of the entire
remaining amount of the assigning Lender’s Commitment, unless each of the
Borrower and the Administrative Agent otherwise consent and, after giving
effect to such assignment, the assigning Lender and its Affiliates and the
Approved Funds with respect to such Lender shall have a Commitment of at least
$5,000,000 unless each of the Borrower and the Administrative Agent otherwise
consents, (iii) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under
this Credit Agreement, (iii) the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500 and (iv) the assignee, if
it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; provided further that any consent of the
Borrower otherwise required under this paragraph shall not be required if an
Event of Default has occurred and is continuing.  Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Credit Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and


 


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Acceptance,
be released from its obligations under this Credit Agreement (and, in the case
of an Assignment and Acceptance covering all of the assigning Lender’s rights
and obligations under this Credit Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.14, 2.15, 2.16 and 9.03 and shall continue to be bound by Section 8.07,
in each as relates to matters arising before such assignment).  Any assignment or transfer by a Lender of
rights or obligations under this Credit Agreement that does not comply with
this paragraph shall be treated for purposes of this Credit Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with paragraph (e) of this Section.


 


(c)                                  The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices in New Castle, Delaware a copy of each
Assumption Agreement and each Assignment and Acceptance 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 (absent manifest error), and the Borrower, the Administrative Agent,
the Issuing Banks 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 Credit Agreement, notwithstanding notice to the contrary.


 


(d)                                 Upon
its receipt of a duly completed Assignment and Acceptance 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 Acceptance
and record the information contained therein in the Register.  No assignment shall be effective for purposes
of this Credit Agreement unless it has been recorded in the Register as provided
in this paragraph.


 


(e)                                  Any
Lender may, without the consent of the Borrower, the Administrative Agent or
any Issuing Bank, 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 Credit Agreement (including all or a portion of its Commitment and
the Loans owing to it); provided that (i) such Lender’s obligations
under this Credit Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the
Issuing Banks 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 Credit 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 Credit Agreement
and to approve any amendment, modification or waiver of any provision of this
Credit 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


 


61





















 


affects such Participant.  Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section.


 


(f)                                    A
Participant shall not be entitled to receive any greater payment under Section 2.14
or 2.16 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 2.16
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 2.16(e)
as though it were a Lender.


 


(g)                                 Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Credit Agreement to secure obligations of such
Lender, including any such pledge or assignment 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 assignee for such Lender as a party hereto.


 


(h)                                 Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle (an “SPC”) of such
Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.01;
provided that (i) nothing herein shall constitute a commitment to
make any Loan by any SPC and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof.  The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by the Granting Lender. 
Each party hereto hereby agrees that no SPC shall be liable for any payment
under this Credit Agreement for which a Lender would otherwise be liable, for
so long as, and to the extent, the related Granting Lender makes such
payment.  In furtherance of the
foregoing, each party hereto hereby agrees that, prior to the date that is one
year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States or any State thereof.  In addition, notwithstanding anything to the
contrary contained in this Section 9.04 or in Section 9.12, any SPC
may (i) with notice to, but without the prior written consent of, the
Borrower or the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to its Granting
Lender or to any financial institutions providing liquidity and/or credit facilities
to or for the account of such SPC to fund the


 


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Loans
made by such SPC or to support the securities (if any) issued by such SPC to
fund such Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of a surety, guarantee or credit or liquidity enhancement to such
SPC.


 


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 Credit Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Credit Agreement and the making of any Loans and issuance of
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
Bank 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
Credit 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 2.14, 2.15,
2.16 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 Credit Agreement or any
provision hereof.


 


Section 9.06                            Counterparts;
Integration; Effectiveness.


 


This
Credit 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 Credit Agreement and any separate letter
agreements with respect to fees payable to the Administrative Agent constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. 
Except as provided in Section 4.01, this Credit 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 of this Credit Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Credit Agreement.


 


Section 9.07                            Severability.


 


Any
provision of this Credit 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.


 


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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 Credit Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Credit
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; Consent to Service of Process.


 


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


 


(b)                                 Each
of the Borrower and the Guarantors 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 Credit 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 court 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 Credit Agreement shall affect
any right that the Administrative Agent, any Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Credit
Agreement against the Borrower or any Guarantor or their respective properties
in the courts of any jurisdiction.


 


(c)                                  Each
of the Borrower and the Guarantors 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 Credit 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)                                 Each
party to this Credit Agreement irrevocably consents to service of process in
the manner provided for notices in Section 9.01.  Nothing in this Credit Agreement will affect
the right of any party to this Credit Agreement to serve process in any other
manner permitted by law.


 


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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                            Headings.


 


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


 


Section 9.12                            Confidentiality.


 


Each
of the Administrative Agent, the Issuing Banks and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ and its
Approved Funds’ 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), (b) to the extent requested by any regulatory authority,
(c) to the extent, and only to the extent, required by applicable laws or
regulations or by any subpoena or similar legal process, provided that the
Person required to disclose such information shall take reasonable efforts (at
Borrower’s expense) to ensure that any Information so disclosed shall be
afforded confidential treatment, (d) to any other party to this Credit
Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Credit Agreement or the
enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Credit Agreement, (g) with the consent of
the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis from a source other than the Borrower who
is not, to the knowledge of the Administrative Agent, such Issuing Bank or such
Lender, under an obligation of confidentiality to Borrower with respect to such
Information.  For the purposes of this
Section, “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 Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower;


 


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provided
that, in the case of information received 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 9.13                            Patriot Act Notice.


 


Each
Lender and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance
with the Patriot Act.  The Borrower shall
provide, to the extent commercially reasonable, such information and take such
actions as are reasonably requested by the Administrative Agent or any Lenders
in order to assist the Administrative Agent and the Lenders in maintaining
compliance with the Patriot Act.


 


ARTICLE X


 


GUARANTY


 


Section 10.1                            The Guaranty.


 


In
order to induce the Lenders and the Issuing Banks to enter into this Credit
Agreement and the other Credit Documents and to extend credit hereunder and in
recognition of the direct benefits to be received by the Guarantors from the
Borrowings and Letters of Credit hereunder, each of the Guarantors hereby agrees
with the Administrative Agent and the Lenders as follows: each Guarantor hereby
unconditionally and irrevocably jointly and severally guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, by acceleration or otherwise, of any and all obligations of the
Borrower to the Administrative Agent, the Issuing Banks and the Lenders.  If any or all of the obligations of the
Borrower to the Administrative Agent, the Issuing Banks and the Lenders becomes
due and payable hereunder, each Guarantor unconditionally promises to pay such
indebtedness to the Administrative Agent, the Issuing Banks and the Lenders, on
order, or demand, together with any and all reasonable expenses which may be
incurred by the Administrative Agent, the Issuing Banks or the Lenders in
collecting any of the obligations.


 


Notwithstanding
any provision to the contrary contained herein, to the extent the obligations
of a Guarantor shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers) then the
obligations of each such Guarantor hereunder shall be limited to the maximum
amount that is permissible under applicable law (whether federal or state).


 


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Section 10.2                            Bankruptcy.


 


Additionally,
each of the Guarantors unconditionally and irrevocably guarantees jointly and
severally the payment of any and all indebtedness of the Borrower to the
Administrative Agent, the Issuing Banks and Lenders whether or not due or
payable by the Borrower upon the occurrence of any of the Event of Default
specified in Article VII, subsection (i), and unconditionally
promises to pay such obligations to the Administrative Agent for the account of
itself, the Issuing Banks and the Lenders, or order, on demand, in lawful money
of the United States.  Each of the
Guarantors further agrees that to the extent that the Borrower or a Guarantor
shall make a payment or a transfer of an interest in any property to the
Administrative Agent, any Issuing Bank or any Lender, which payment or transfer
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise is avoided, and/or required to be repaid to the
Borrower or a Guarantor, the estate of the Borrower or a Guarantor, a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such avoidance or
repayment, the obligation or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment had not been
made.


 


Section 10.3                            Nature of Liability.


 


The
liability of each Guarantor hereunder is exclusive and independent of any
security for or other guaranty of the indebtedness of the Borrower whether
executed by any such Guarantor, any other guarantor or by any other party, and
no Guarantor’s liability hereunder shall be affected or impaired by (a) any
direction as to application of payment by the Borrower or by any other party,
or (b) any other continuing or other guaranty, undertaking or maximum liability
of a guarantor or of any other party as to the indebtedness of the Borrower, or
(c) any payment on or in reduction of any such other guaranty or undertaking,
or (d) any dissolution, termination or increase, decrease or change in
personnel by the Borrower, or (e) any payment made to the Administrative Agent,
the Issuing Banks or the Lenders on the indebtedness which the Administrative
Agent, such Issuing Bank or such Lenders repay the Borrower pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceeding, and each of the Guarantors waives any right to the
deferral or modification of its obligations hereunder by reason of any such
proceeding.


 


Section 10.4                            Independent Obligation.


 


The
obligations of each Guarantor hereunder are independent of the obligations of
any other guarantor or the Borrower, and a separate action or actions may be
brought and prosecuted against each Guarantor whether or not action is brought
against any other guarantor or the Borrower and whether or not any other
Guarantor or the Borrower is joined in any such action or actions.


 


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Section 10.5                            Authorization.


 


Each
of the Guarantors authorizes the Administrative Agent, each Issuing Bank and
each Lender without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to (a) renew, compromise, extend, increase,
accelerate or otherwise change the time for payment of, or otherwise change the
terms of the indebtedness or any part thereof in accordance with this Credit
Agreement, including any increase or decrease of the rate of interest thereon,
(b) take and hold security from any guarantor or any other party for the
payment of this Guaranty or the indebtedness and exchange, enforce waive and
release any such security, (c) apply such security and direct the order or
manner of sale thereof as the Administrative Agent and the Lenders in their
discretion may determine and (d) release or substitute any one or more endorsers,
guarantors, the Borrower or other obligors.


 


Section 10.6                            Reliance.


 


It is
not necessary for the Administrative Agent, the Issuing Banks or the Lenders to
inquire into the capacity or powers of the Borrower or the officers, directors,
members, partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.


 


Section 10.7                            Waiver.


 


(a)                                  Each
of the Guarantors waives any right (except as shall be required by applicable
statute and cannot be waived) to require the Administrative Agent, any Issuing
Bank or any Lender to (i) proceed against the Borrower, any other guarantor or
any other party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party, or (iii) pursue any other
remedy in the Administrative Agent’s, any Issuing Bank’s or any Lender’s power
whatsoever.  Each of the Guarantors
waives any defense based on or arising out of any defense of the Borrower, any
other guarantor or any other party other than payment in full of the
indebtedness, including without limitation any defense based on or arising out
of the disability of the Borrower, any other guarantor or any other party, or
the unenforceability of the indebtedness or any part thereof from any cause, or
the cessation from any cause of the liability of the Borrower other than
payment in full of the indebtedness.  The
Administrative Agent, any Issuing Bank or any of the Lenders may, at their
election, foreclose on any security held by the Administrative Agent, an
Issuing Bank or a Lender by one or more judicial or nonjudicial sales, whether
or not every aspect of any such sale is commercially reasonable (to the extent
such sale is permitted by applicable law), or exercise any other right or
remedy the Administrative Agent, any Issuing Bank or any Lender may have
against the Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the indebtedness has been paid. 
Each of the Guarantors waives any defense arising out of any such
election by the Administrative Agent, any Issuing Bank or any of the Lenders,
even though such election operates to impair or extinguish any right of
reimbursement or


 


68





















 


subrogation or other right or
remedy of the Guarantors against the Borrower or any other party or any
security.


 


(b)                                 Each
of the Guarantors waives all presentments, demands for performance, protests
and notices, including without limitation notices of nonperformance, notice of
protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional
indebtedness.  Each Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower’s
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the indebtedness and the nature, scope and extent of the
risks which such Guarantor assumes and incurs hereunder, and agrees that none
of the Administrative Agent, the Issuing Banks and the Lenders shall have any
duty to advise such Guarantor of information known to it regarding such circumstances
or risks.


 


(c)                                  Each
of the Guarantors hereby agrees it will not exercise any rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise)
to the claims of the Administrative Agent, the Issuing Banks and the Lenders
against the Borrower or any other guarantor of the indebtedness of the Borrower
owing to the Administrative Agent, the Issuing Banks and the Lenders
(collectively, the “Other Parties”) and all contractual, statutory or
common law rights of reimbursement, contribution or indemnity from any Other
Party which it may at any time otherwise have as a result of this Guaranty
until such time as the Loans and the reimbursement obligations in respect of LC
Disbursements hereunder shall have been paid and the Commitments have been
terminated and no Letters of Credit are outstanding.  Each of the Guarantors hereby further agrees
not to exercise any right to enforce any other remedy which the Administrative
Agent, the Issuing Banks and the Lenders now have or may hereafter have against
any Other Party, any endorser or any other guarantor of all or any part of the
indebtedness of the Borrower and any benefit of, and any right to participate in,
any security or collateral given to or for the benefit of the Issuing Banks and
the Lenders to secure payment of the indebtedness of the Borrower until such
time as the Loans and the reimbursement obligations in respect of LC
Disbursements hereunder shall have been paid and the Commitments have been
terminated and no Letters of Credit are outstanding.


 


Section 10.8                            Limitation on
Enforcement.


 


The
Lenders and the Issuing Banks agree that this Guaranty may be enforced only by
the action of the Administrative Agent acting upon the instructions of the
Required Lenders and that none of the Lenders or the Issuing Banks shall have
any right individually to seek to enforce or to enforce this Guaranty, it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent for the benefit of itself, the Issuing Banks and the
Lenders under the terms of this Credit Agreement.  The Administrative Agent, the Issuing Banks
and the Lenders further agree that this Guaranty may not be enforced against
any director, officer, employee or stockholder or other equityholder of the
Guarantors.


 


69





















 


Section 10.9                            Confirmation
of Payment.


 


The
Administrative Agent, the Issuing Banks and the Lenders will, upon request
after payment of the indebtedness and obligations which are the subject of this
Guaranty and termination of the Commitments relating thereto and the expiration
or the termination of all Letters of Credit, confirm to the Borrower, the
Guarantors or any other Person that such indebtedness and obligations have been
paid and the Commitments relating thereto terminated, subject to the provisions
of Section 10.2.


 


70





















 


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


 


	
  BORROWER:

  	
  MEDTRONIC, INC,

  
	
   

  	
  a Minnesota
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert L. Ryan

  	
   

  
	
   

  	
  Name:

  	
  Robert L. Ryan

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Ching-Meng Chew

  	
   

  
	
   

  	
  Name:

  	
  Ching-Meng Chew

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Assistant
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  MEDTRONIC
  MINIMED, INC.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert L. Ryan

  	
   

  
	
   

  	
  Name:

  	
  Robert L. Ryan

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDTRONIC
  INTERNATIONAL, LTD,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert L. Ryan

  	
   

  
	
   

  	
  Name:

  	
  Robert L. Ryan

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDTRONIC
  VASCULAR, INC.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert L. Ryan

  	
   

  
	
   

  	
  Name:

  	
  Robert L. Ryan

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDTRONIC
  INTERNATIONAL

  
	
   

  	
  TECHNOLOGY,
  INC.,

  
	
   

  	
  a Minnesota
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert L. Ryan

  	
   

  
	
   

  	
  Name:

  	
  Robert L. Ryan

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
								



 


71





















 


	
   

  	
  MEDTRONIC
  SOFAMOR DANEK, INC.,

  
	
   

  	
  an Indiana
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert L. Ryan

  	
   

  
	
   

  	
  Name:

  	
  Robert L. Ryan

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDTRONIC
  USA, INC.,

  
	
   

  	
  a Minnesota
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert L. Ryan

  	
   

  
	
   

  	
  Name:

  	
   Robert L.
  Ryan

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
							



 


72





















 


	
  LENDERS:

  	
  CITICORP
  USA, INC.,

  
	
   

  	
  individually in
  its capacity as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Carolyn A. Kee

  	
   

  
	
   

  	
  Name:

  	
  Carolyn A. Kee

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  CITICORP
  USA, INC.

  
	
   

  	
  individually in
  its capacity as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Carolyn A. Kee

  	
   

  
	
   

  	
  Name:

  	
  Carolyn A. Kee

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  CITICORP
  USA, INC.,

  
	
   

  	
  individually in
  its capacity as Swingline Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Carolyn A. Kee

  	
   

  
	
   

  	
  Name:

  	
  Carolyn A. Kee

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A.,

  
	
   

  	
  individually in
  its capacity as an Issuing Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Carolyn A. Kee

  	
   

  
	
   

  	
  Name:

  	
  Carolyn A. Kee

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
  individually in
  its capacity as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Philip S. Durand

  	
   

  
	
   

  	
  Name:

  	
  Philip S. Durand

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
  individually in
  its capacity as an Issuing Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Philip S. Durand

  	
   

  
	
   

  	
  Name:

  	
  Philip S. Durand

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  BANK OF TOKYO-MITSUBISHI, LTD.,

  
	
   

  	
  CHICAGO
  BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Patrick McCue

  	
   

  
	
   

  	
  Name:

  	
  Patrick McCue

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Manager

  	
   

  
						



 


73





















 


	
   

  	
  DEUTSCHE
  BANK AG NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Patrick Dutilly

  	
   

  
	
   

  	
  Name:

  	
  Patrick Dutilly

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Belinda Wheeler

  	
   

  
	
   

  	
  Name:

  	
  Belinda Wheeler

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas T. Hou

  	
   

  
	
   

  	
  Name:

  	
  Thomas T. Hou

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  MIZUHO
  CORPORATE BANK, LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Greg Botshon

  	
   

  
	
   

  	
  Name:

  	
  Greg Botshon

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Allison S. Gelfman

  	
   

  
	
   

  	
  Name:

  	
  Allison S.
  Gelfman

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jacqueline T. Ryan

  	
   

  
	
   

  	
  Name:

  	
  Jacqueline T.
  Ryan

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  UBS
  LOAN FINANCE LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Doris Mesa

  	
   

  
	
   

  	
  Name:

  	
  Doris Mesa

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Associate Director Banking Products

  	
   

  
	
   

  	
   

  	
  Services, US

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Joselin Fernandes

  	
   

  
	
   

  	
  Name:

  	
  Joselin
  Fernandes

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Associate Director Banking Products

  	
   

  
	
   

  	
   

  	
  Services, US

  	
   

  
							



 


74





















 


	
   

  	
  ABN
  AMRO BANK, N.V.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert H. Steelman

  	
   

  
	
   

  	
  Name:

  	
  Robert H.
  Steelman

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michele R. Costello

  	
   

  
	
   

  	
  Name:

  	
  Michele R.
  Costello

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Assistant Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNP
  PARIBAS

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ JoEllen Bender

  	
   

  
	
   

  	
  Name:

  	
  Jo Ellen Bender

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Gaye C. Plunkett

  	
   

  
	
   

  	
  Name:

  	
  Gaye C. Plunkett

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  WILLIAM
  STREET COMMITMENT

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Manda D’Agata

  	
   

  
	
   

  	
  Name:

  	
  Manda D’Agata

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
  MERRILL
  LYNCH BANK USA

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Louis Alder

  	
   

  
	
   

  	
  Name:

  	
  Louis Alder

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Daniel Twenge

  	
   

  
	
   

  	
  Name:

  	
  Daniel Twenge

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ William F. Fox

  	
   

  
	
   

  	
  Name:

  	
  William F. Fox

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
						



 


75





















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Karen Weathers

  	
   

  
	
   

  	
  Name:

  	
  Karen Weathers

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  FIFTH
  THIRD BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Ann-Drea Burns

  	
   

  
	
   

  	
  Name:

  	
  Ann-Drea Burns

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Assistant Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Chris Swindell

  	
   

  
	
   

  	
  Name:

  	
  Chris Swindell

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  NORTHERN TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David C. Fisher

  	
   

  
	
   

  	
  Name:

  	
  David C. Fisher

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  SUNTRUST
  BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ W. Brooks Hubbard

  	
   

  
	
   

  	
  Name:

  	
  W. Brooks
  Hubbard

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Director

  	
   

  
						



 


76