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Exhibit 10.18    
  


$60,000,000 SENIOR MULTI-CURRENCY REVOLVING CREDIT FACILITY  


 CREDIT AGREEMENT  


 by and among  


 VIASYS HEALTHCARE INC.  


 and  


 THE BANKS PARTY HERETO  


 and  


 ABN AMRO BANK N.V., as Administrative Agent  


 ABN AMRO INCORPORATED, as Lead Arranger  


 BANK OF AMERICA, N.A., as Co-Syndication Agent  


 KEY CORPORATE CAPITAL INC., as Co-Syndication Agent  


Dated
May 31, 2002 





 
 
 

TABLE OF CONTENTS    
  



	Section
 
	 
	 
	 	Page

	

1.	

CERTAIN DEFINITIONS	
 	

1
	 	1.1	Certain Definitions.	 	1
	 	1.2	Construction.	 	15
	 	 	1.2.1.	Number; Inclusion.	 	15
	 	 	1.2.2.	Determination.	 	15
	 	 	1.2.3.	Agent's Discretion and Consent.	 	15
	 	 	1.2.4.	Documents Taken as a Whole.	 	15
	 	 	1.2.5.	Headings.	 	15
	 	 	1.2.6.	Implied References to this Agreement.	 	15
	 	 	1.2.7.	Persons.	 	15
	 	 	1.2.8.	Modifications to Documents.	 	15
	 	 	1.2.9.	From, To and Through.	 	15
	 	 	1.2.10.	Shall; Will.	 	16
	 	1.3	Accounting Principles.	 	16
	 	1.4	Dollar Equivalents.	 	16
	

2.	

REVOLVING CREDIT AND SWING LOAN FACILITIES	
 	

16
	 	2.1	Revolving Credit Commitments.	 	16
	 	 	2.1.1.	Revolving Credit Loans.	 	16
	 	 	2.1.2.	Swing Loan Commitment.	 	16
	 	 	2.1.3.	Voluntary Reduction of Revolving Credit Commitments.	 	17
	 	2.2	Nature of Banks' Obligations with Respect to Revolving Credit Loans.	 	17
	 	2.3	Commitment Fee.	 	17
	 	2.4	Revolving Credit Facility Fee.	 	17
	 	2.5	Revolving Credit Loan Requests; Swing Loan Requests.	 	17
	 	 	2.5.1.	Revolving Credit Loan Requests.	 	17
	 	 	2.5.2.	Swing Loan Requests.	 	18
	 	2.6	Making Revolving Credit Loans and Swing Loans.	 	18
	 	 	2.6.1.	Making Revolving Credit Loans.	 	18
	 	 	2.6.2.	Making Swing Loans.	 	19
	 	2.7	Swing Loan Note.	 	19
	 	2.8	Use of Proceeds.	 	19
	 	2.9	Borrowings to Repay Swing Loans.	 	19
	 	2.10	Utilization of Commitments in Optional Currencies.	 	19
	 	 	2.10.1.	Periodic Computations of Dollar Equivalent Amounts of Loans and Letters of Credit Outstanding.	 	19
	 	 	2.10.2.	Notices From Banks That Optional Currencies Are Unavailable to Fund New Loans.	 	19
	 	 	2.10.3.	Notices From Banks That Optional Currencies Are Unavailable to Fund Renewals of the Loan LIBOR Option.	 	20
	 	 	2.10.4.	European Monetary Union.	 	20
	 	 	2.10.5.	Requests for Additional Optional Currencies.	 	21
	 	2.11	Letter of Credit Subfacility.	 	22
	 	 	2.11.1.	Issuance of Letters of Credit.	 	22
	 	 	2.11.2.	Letter of Credit Fees.	 	22
	 	 	2.11.3.	Disbursements, Reimbursement.	 	22
	 	 	2.11.4.	Repayment of Participation Advances.	 	24
	 	 	2.11.5.	Documentation.	 	24



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	 	 	2.11.6.	Determinations to Honor Drawing Requests.	 	24
	 	 	2.11.7.	Nature of Participation and Reimbursement Obligations.	 	24
	 	 	2.11.8.	Indemnity.	 	26
	 	 	2.11.9.	Liability for Acts and Omissions.	 	26
	 	2.12	Currency Repayments.	 	27
	 	2.13	Optional Currency Amounts.	 	27
	 	2.14	Re-Designation of Designated Foreign Subsidiary.	 	28
	

3.	

INTEREST RATES	
 	

28
	 	3.1	Interest Rate Options.	 	28
	 	 	3.1.1.	Revolving Credit Interest Rate Options.	 	28
	 	 	3.1.2.	Swing Loan Interest Rate Options.	 	28
	 	 	3.1.3.	Rate Quotations.	 	29
	 	 	3.1.4.	Change in Fees or Interest Rates.	 	29
	 	3.2	Interest Periods.	 	29
	 	 	3.2.1.	Amount of Borrowing Tranche.	 	29
	 	 	3.2.2.	Renewals.	 	29
	 	3.3	Interest After Default.	 	30
	 	 	3.3.1.	Letter of Credit Fees, Interest Rate.	 	30
	 	 	3.3.2.	Other Obligations.	 	30
	 	 	3.3.3.	Acknowledgment.	 	30
	 	3.4	LIBOR Unascertainable; Illegality; Increased Costs; Deposits Not Available.	 	30
	 	 	3.4.1.	Unascertainable.	 	30
	 	 	3.4.2.	Illegality; Increased Costs; Deposits Not Available.	 	30
	 	 	3.4.3.	Agent's and Bank's Rights.	 	31
	 	3.5	Selection of Interest Rate Options.	 	31
	

4.	

PAYMENTS	
 	

31
	 	4.1	Payments.	 	31
	 	4.2	Pro Rata Treatment of Banks.	 	32
	 	4.3	Interest Payment Dates.	 	32
	 	4.4	Voluntary Prepayments.	 	32
	 	 	4.4.1.	Right to Prepay.	 	32
	 	 	4.4.2.	Replacement of a Bank.	 	33
	 	 	4.4.3.	Change of Lending Office.	 	34
	 	4.5	Mandatory Prepayments.	 	34
	 	 	4.5.1.	Currency Fluctuations.	 	34
	 	 	4.5.2.	Application Among Interest Rate Options.	 	34
	 	4.6	Additional Compensation in Certain Circumstances.	 	34
	 	 	4.6.1.	Increased Costs or Reduced Return Resulting From Taxes, Reserves, Capital Adequacy Requirements, Expenses, Etc.	 	34
	 	 	4.6.2.	Indemnity.	 	35
	 	4.7	Interbank Market Presumption.	 	36
	 	4.8	Taxes.	 	36
	 	 	4.8.1.	No Deductions.	 	36
	 	 	4.8.2.	Stamp Taxes.	 	36
	 	 	4.8.3.	Indemnification for Taxes Paid by a Bank.	 	36
	 	 	4.8.4.	Certificate.	 	37
	 	 	4.8.5.	Survival.	 	37
	 	4.9	Judgment Currency.	 	37
	 	 	4.9.1.	Currency Conversion Procedures for Judgments.	 	37



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	 	 	4.9.2.	Indemnity in Certain Events.	 	37
	 	4.10	Notes.	 	37
	

5.	

REPRESENTATIONS AND WARRANTIES	
 	

37
	 	5.1	Representations and Warranties.	 	37
	 	 	5.1.1.	Organization and Qualification.	 	37
	 	 	5.1.2.	Subsidiaries.	 	38
	 	 	5.1.3.	Power and Authority.	 	38
	 	 	5.1.4.	Validity and Binding Effect.	 	38
	 	 	5.1.5.	No Conflict.	 	38
	 	 	5.1.6.	Litigation.	 	39
	 	 	5.1.7.	Title to Properties.	 	39
	 	 	5.1.8.	Financial Statements.	 	39
	 	 	Use of Proceeds; Margin Stock; Section 20 Subsidiaries.	 	40
	 	 	5.1.10.	Full Disclosure.	 	40
	 	 	5.1.11.	Taxes.	 	40
	 	 	5.1.12.	Consents and Approvals.	 	41
	 	 	5.1.13.	No Event of Default; Compliance With Instruments.	 	41
	 	 	5.1.14.	Patents, Trademarks, Copyrights, Licenses, Etc.	 	41
	 	 	5.1.15.	Insurance.	 	41
	 	 	5.1.16.	Compliance With Laws.	 	41
	 	 	5.1.17.	Material Contracts; Burdensome Restrictions.	 	41
	 	 	5.1.18.	Investment Companies; Regulated Entities.	 	42
	 	 	5.1.19.	Plans and Benefit Arrangements.	 	42
	 	 	5.1.20.	Employment Matters.	 	42
	 	 	5.1.21.	Environmental Matters.	 	43
	 	 	5.1.22.	Senior Debt Status.	 	43
	 	5.2	Continuation of Representations.	 	43
	

6.	

CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT	
 	

43
	 	6.1	First Loans and Letters of Credit.	 	43
	 	 	6.1.1.	Officer's Certificate.	 	43
	 	 	6.1.2.	Secretary's Certificate.	 	44
	 	 	6.1.3.	Delivery of Loan Documents.	 	44
	 	 	6.1.4.	Opinion of Counsel.	 	44
	 	 	6.1.5.	Legal Details.	 	44
	 	 	6.1.6.	Payment of Fees.	 	45
	 	 	6.1.7.	Consents.	 	45
	 	 	6.1.8.	Officer's Certificate Regarding MACs.	 	45
	 	 	6.1.9.	No Violation of Laws.	 	45
	 	 	6.1.10.	No Actions or Proceedings.	 	45
	 	 	6.1.11.	Repayment of Indebtedness.	 	45
	 	6.2	Each Additional Loan or Letter of Credit.	 	45
	

7.	

COVENANTS	
 	

46
	 	7.1	Affirmative Covenants.	 	46
	 	 	7.1.1.	Preservation of Existence, Etc.	 	46
	 	 	7.1.2.	Payment of Liabilities, Including Taxes, Etc.	 	46
	 	 	7.1.3.	Maintenance of Insurance.	 	46
	 	 	7.1.4.	Maintenance of Properties and Leases.	 	47
	 	 	7.1.5.	Maintenance of Patents, Trademarks, Etc.	 	47



iii





 

	 	 	7.1.6.	Visitation Rights.	 	47
	 	 	7.1.7.	Keeping of Records and Books of Account.	 	47
	 	 	7.1.8.	Plans and Benefit Arrangements.	 	47
	 	 	7.1.9.	Compliance With Laws.	 	47
	 	 	7.1.10.	Use of Proceeds.	 	47
	 	 	7.1.11.	Guarantors and Pledged Interests.	 	48
	 	 	7.1.12.	Senior Status of Obligations.	 	48
	 	 	7.1.13.	Pledge Agreements after Closing Date.	 	48
	 	7.2	Negative Covenants.	 	49
	 	 	7.2.1.	Indebtedness.	 	49
	 	 	7.2.2.	Liens.	 	49
	 	 	7.2.3.	Guaranties.	 	49
	 	 	7.2.4.	Loans and Investments.	 	49
	 	 	7.2.5.	Liquidations, Mergers, Consolidations, Acquisitions.	 	50
	 	 	7.2.6.	Dispositions of Assets or Subsidiaries.	 	51
	 	 	7.2.7.	Affiliate Transactions; Restricted Payments.	 	51
	 	 	7.2.8.	Subsidiaries, Partnerships and Joint Ventures.	 	52
	 	 	7.2.9.	Continuation of or Change in Business.	 	52
	 	 	7.2.10.	Plans and Benefit Arrangements.	 	52
	 	 	7.2.11.	Fiscal Year.	 	52
	 	 	7.2.12.	Capital Expenditures.	 	52
	 	 	7.2.13.	Maximum Leverage Ratio.	 	53
	 	 	7.2.14.	Minimum Interest Coverage Ratio.	 	53
	 	 	7.2.15.	Minimum Stockholders' Equity.	 	53
	 	7.3	Reporting Requirements.	 	53
	 	 	7.3.1.	Quarterly Financial Statements.	 	53
	 	 	7.3.2.	Annual Financial Statements.	 	53
	 	 	7.3.3.	Certificate of the Borrower.	 	54
	 	 	7.3.4.	Notice of Default.	 	54
	 	 	7.3.5.	Notice of Litigation.	 	54
	 	 	7.3.6.	Sale of Assets.	 	54
	 	 	7.3.7.	Budgets, Forecasts, Other Reports and Information.	 	54
	 	 	7.3.8.	Notices Regarding Plans and Benefit Arrangements.	 	55
	

8.	

DEFAULT	
 	

56
	 	8.1	Events of Default.	 	56
	 	 	8.1.1.	Payments Under Loan Documents.	 	56
	 	 	8.1.2.	Breach of Warranty.	 	56
	 	 	8.1.3.	Breach of Negative Covenants or Visitation Rights.	 	56
	 	 	8.1.4.	Breach of Other Covenants.	 	56
	 	 	8.1.5.	Defaults in Other Agreements or Indebtedness.	 	57
	 	 	8.1.6.	Final Judgments or Orders.	 	57
	 	 	8.1.7.	Loan Document Unenforceable.	 	57
	 	 	8.1.8.	Uninsured Losses; Proceedings Against Assets.	 	57
	 	 	8.1.9.	Notice of Lien or Assessment.	 	57
	 	 	8.1.10.	Insolvency.	 	57
	 	 	8.1.11.	Material Adverse Change.	 	57
	 	 	8.1.12.	Events Relating to Plans and Benefit Arrangements.	 	58
	 	 	8.1.13.	Cessation of Business.	 	58
	 	 	8.1.14.	Change of Control.	 	58



iv





 

	 	 	8.1.15.	Involuntary Proceedings.	 	58
	 	 	8.1.16.	Voluntary Proceedings.	 	59
	 	8.2	Consequences of Event of Default.	 	59
	 	 	8.2.1.	Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings.	 	59
	 	 	8.2.2.	Bankruptcy, Insolvency or Reorganization Proceedings.	 	59
	 	 	8.2.3.	Set-off.	 	59
	 	 	8.2.4.	Suits, Actions, Proceedings.	 	60
	 	 	8.2.5.	Application of Proceeds; Collateral Sharing.	 	60
	 	 	8.2.6.	Other Rights and Remedies.	 	61
	

9.	

THE AGENT	
 	

61
	 	9.1	Appointment.	 	61
	 	9.2	Delegation of Duties.	 	61
	 	9.3	Nature of Duties; Independent Credit Investigation.	 	61
	 	9.4	Actions in Discretion of Agent; Instructions From the Banks.	 	62
	 	9.5	Reimbursement and Indemnification of Agent by the Borrower.	 	62
	 	9.6	Exculpatory Provisions; Limitation of Liability.	 	63
	 	9.7	Reimbursement and Indemnification of Agent by Banks.	 	63
	 	9.8	Reliance by Agent.	 	64
	 	9.9	Notice of Default.	 	64
	 	9.10	Notices.	 	64
	 	9.11	Banks in Their Individual Capacities; Agent in Its Individual Capacity.	 	64
	 	9.12	Holders of Notes.	 	64
	 	9.13	Equalization of Banks.	 	65
	 	9.14	Successor Agent.	 	65
	 	9.15	Agent's Fee.	 	65
	 	9.16	Availability of Funds.	 	65
	 	9.17	Calculations.	 	66
	 	9.18	Beneficiaries.	 	66
	

10.	

MISCELLANEOUS	
 	

66
	 	10.1	Modifications, Amendments or Waivers.	 	66
	 	 	10.1.1.	Increase of Commitment; Extension of Expiration Date.	 	66
	 	 	10.1.2.	Extension of Payment; Reduction of Principal Interest or Fees; Modification of Terms of Payment.	 	67
	 	 	10.1.3.	Release of Collateral or Guarantor.	 	67
	 	 	10.1.4.	Miscellaneous.	 	67
	 	10.2	No Implied Waivers; Cumulative Remedies; Writing Required.	 	67
	 	10.3	Reimbursement and Indemnification of Banks by the Borrower; Taxes.	 	67
	 	10.4	Holidays.	 	68
	 	10.5	Funding by Branch, Subsidiary or Affiliate.	 	68
	 	 	10.5.1.	Notional Funding.	 	68
	 	 	10.5.2.	Actual Funding.	 	68
	 	10.6	Notices; Lending Offices.	 	69
	 	10.7	Severability.	 	69
	 	10.8	Governing Law.	 	70
	 	10.9	Prior Understanding.	 	70
	 	10.10	Duration; Survival.	 	70
	 	10.11	Successors and Assigns.	 	70
	 	10.12	Confidentiality.	 	71



v





 

	 	 	10.12.1.	General.	 	72
	 	 	10.12.2.	Sharing Information With Affiliates of the Banks.	 	72
	 	10.13	Counterparts.	 	72
	 	10.14	Agent's or Bank's Consent.	 	72
	 	10.15	Exceptions.	 	72
	 	10.16	CONSENT TO FORUM; WAIVER OF JURY TRIAL.	 	72
	 	10.17	Tax Withholding Clause.	 	72
	 	10.18	Joinder of Guarantors or Pledge under Pledge Agreement.	 	73
	 	 	10.18.1.	Joinder	 	73
	 	 	10.18.2.	Pledge.	 	74
	 	10.19	Limitations or Indemnification Obligations of Loan Parties.	 	74
	 	 	10.19.1.	Notices.	 	74
	 	 	10.19.2.	Exclusions.	 	74
	 	10.20	Limitation on Damages.	 	74
	 	10.21	Concerning Agent Terms.	 	74




vi





 
 
 

LIST OF SCHEDULES AND EXHIBITS    
  



	SCHEDULES	 	 	 	 
	

SCHEDULE 1.1(B)	
 	

—	
 	

COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES; LENDING OFFICES
	SCHEDULE 1.1(P)	 	—	 	PERMITTED LIENS
	SCHEDULE 5.1.2	 	—	 	SUBSIDIARIES
	SCHEDULE 5.1.12	 	—	 	CONSENTS AND APPROVALS
	SCHEDULE 7.2.1	 	—	 	PERMITTED INDEBTEDNESS
	SCHEDULE 7.2.3	 	—	 	GUARANTY OF NICOLET BIOMEDICAL
	SCHEDULE 7.2.4(ii)	 	—	 	EMPLOYEE LOANS
	
EXHIBITS	
 	

 	
 	

 
	

EXHIBIT 1.1(A)	
 	

—	
 	

ASSIGNMENT AND ASSUMPTION AGREEMENT
	EXHIBIT 1.1(GJ)	 	—	 	GUARANTOR JOINDER
	EXHIBIT 1.1(GA)	 	—	 	GUARANTY AGREEMENT
	EXHIBIT 1.1(R)	 	—	 	REVOLVING CREDIT NOTE
	EXHIBIT 1.1(S)	 	—	 	SWING LOAN NOTE
	EXHIBIT 2.5.1	 	—	 	REVOLVING CREDIT LOAN REQUEST
	EXHIBIT 2.5.2	 	—	 	SWING LOAN REQUEST
	EXHIBIT 7.2.5	 	—	 	ACQUISITION COMPLIANCE CERTIFICATE
	EXHIBIT 7.3.3	 	—	 	QUARTERLY COMPLIANCE CERTIFICATE




vii







 
 

CREDIT AGREEMENT    
  


        THIS CREDIT AGREEMENT (this "Agreement") is dated May 31, 2002 and is made by and among  VIASYS
HEALTHCARE INC., a Delaware corporation (the "Borrower"), each of the Guarantors (as hereinafter defined), the  BANKS (as hereinafter defined), and ABN
AMRO BANK N.V., in its capacity as administrative agent for the
Banks under this Agreement (hereinafter referred to in such capacity as the "Agent") and BANK OF AMERICA, N.A. and KEY CORPORATE
CAPITAL INC., as Co-Syndication Agents. 


        WITNESSETH: 


        WHEREAS,
the Borrower has requested the Banks to provide a revolving credit facility to the Borrower in an aggregate principal amount not to exceed $60,000,000; and 


        WHEREAS,
the revolving credit facility shall be used by the Borrower (i) to refinance existing indebtedness of the Borrower, (ii) for working capital, (iii) for
permitted acquisitions, and (iv) for general corporate purposes of the Borrower; and 



        WHEREAS,
the Guarantors referred to herein are required as a condition to the making of the Loans to guarantee, and have agreed to guarantee the Obligations, jointly and severally,
pursuant to the terms of the Guaranty referred to herein; and 


        WHEREAS,
the Banks are willing to provide such credit upon the terms and conditions hereinafter set forth. 


        NOW,
THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree as
follows: 


 
 

1.    CERTAIN DEFINITIONS


        1.1    Certain Definitions.    


        In
addition to words and terms defined elsewhere in this Agreement, the following words and terms shall have the following meanings, respectively, unless the context hereof clearly
requires otherwise: 



        ABN AMRO Bank or ABN AMRO shall mean ABN AMRO Bank N.V., its successors and assigns. 


        ABR or Alternative Base Rate shall mean the higher of (i) the interest rate per
annum announced from time to time by the Agent at its Principal Office as its then prime rate, which rate may not be the lowest rate then being charged commercial borrowers by the Agent, or
(ii) the Federal Funds Effective Rate plus 0.5% per annum. 


        Affiliate as to any Person shall mean any other Person (i) which directly or indirectly controls, is controlled by, or is under
common control with such Person, (ii) which beneficially owns or holds 5% or more of any class of the voting or other equity interests of such Person, or (iii) 5% or more of any class of
voting interests or other equity interests of which is beneficially owned or held, directly or indirectly, by such Person. "Control," as used in this definition, shall mean 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 ownership of voting securities, by contract or otherwise, including the power
to elect a majority of the directors or trustees of a corporation or trust, as the case may be. 


        Agent shall mean ABN AMRO Bank N.V., as Administrative Agent and its successors and assigns. 


        Agent's Fee shall have the meaning assigned to that term in Section 9.15. 


        Agent's Letter shall have the meaning assigned to that term in Section 9.15. 






 




        Agreement shall mean this Credit Agreement, as the same may be supplemented, amended or restated from time to time, including all
schedules and exhibits. 


        Annual Statements shall have the meaning assigned to that term in Section 5.1.8(i). 



        Applicable Margin shall mean with reference to Loans to which the Base Rate Option or the LIBOR Option applies, an amount, respectively,
in excess of the ABR or LIBOR, as appropriate, calculated in respect of the most-recently reported Leverage Ratio commencing with the fiscal quarter ending June 29, 2002 according
to the table set forth below. Applicable Margin shall change five (5) days after the day financial statements are due to be delivered pursuant to Sections 7.3.1 [Quarterly Financial
Statements] and 7.3.2 [Annual Financial Statements] and if information necessary to make such determination is not timely delivered pursuant to such sections,
Applicable Margin shall be at "Level I" in the following table until such information is delivered. 



 
 

PRICING GRID    
  



	Revolving Credit Pricing Grid (in basis points per annum)

	Level
	 	Leverage Ratio
	 	Commitment

Fee
	 	Applicable

Margin Over

LIBOR
	 	Applicable

Margin Over

ABR
	 	Letter of Credit

Fee

	I	 	Greater than or equal to 2.0x	 	40.0	 	200.0	 	100.0	 	200.0
	II	 	Less than 2.0x	 	35.0	 	175.0	 	75.0	 	175.0





        For
periods prior to the date in respect of which the Applicable Margin is first calculated according to the table set forth above, the Applicable Margin shall be at "Level II" shown on
the chart above. 



        Assignment and Assumption Agreement shall mean an Assignment and Assumption Agreement by and among a Purchasing Bank, a Transferor Bank
and the Agent, as Agent and on behalf of the remaining Banks, substantially in the form of Exhibit 1.1(A). 



        Authorized Officer shall mean those individuals, designated by written notice to the Agent from the Borrower, authorized to execute
notices, reports and other documents on behalf of the Loan Parties required hereunder. The Borrower may amend such list of individuals from time to time by giving written notice of such amendment to
the Agent. 


        Banks shall mean the financial institutions from time to time named on  Schedule 1.1(B), as amended from time to time, and their respective successors and assigns
as permitted hereunder, each of which is referred to
herein as a "Bank." 


        Base Rate Option shall mean the option of the Borrower to have Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(i). 


        Benefit Arrangement shall mean at any time an "employee benefit plan," within the meaning of Section 3(3) of ERISA, which is
neither a Plan nor a Multiemployer Plan and which is maintained, sponsored or otherwise contributed to by any member of the ERISA Group. 



        Borrower shall mean VIASYS Healthcare Inc., a corporation organized and existing under the laws of the State of Delaware. 


        Borrowing Date shall mean, with respect to any Loan, the date for the making thereof or the renewal or conversion thereof at or to the
same or a different Interest Rate Option, which shall be a Business Day. 


        Borrowing Tranche shall mean specified portions of Loans outstanding as follows: (i) any Loans to which a LIBOR Option applies
which become subject to the same Interest Rate Option 



2





 





under the same Loan Request by the Borrower and which have the same Interest Period and which are denominated either in Dollars or in the same Optional Currency shall constitute one Borrowing
Tranche, and (ii) all Loans to which a Base Rate Option applies shall constitute one Borrowing Tranche. 


        Business Day shall mean any day other than a Saturday or Sunday or a legal holiday on which commercial banks are authorized or required to
be closed for business in New York, New York or Chicago, Illinois; and (i) if the applicable Business Day relates to any Loan to which the LIBOR Option applies, such day must also be a day on
which dealings are carried on in the London interbank market and (ii) with respect to advances or payments of Loans or any other matters relating to Loans denominated in an Optional Currency,
such day also shall be (A) a day on which dealings in deposits in the relevant Optional Currency are carried on in the applicable interbank market, or (B) a day on which all applicable
banks into which Loan proceeds may be deposited are open for business and foreign exchange markets are open for business in the principal financial center of the country of such currency. 



        Closing Date shall mean May 31, 2002, and shall mean the date on which this Agreement is fully executed by the parties hereto. The
closing shall take place at 10:00 a.m., New York time, on the Closing Date at the offices of Buchanan Ingersoll Professional Corporation in Philadelphia, Pennsylvania, or at such other time and
place as the parties agree. 


        Commercial Letter of Credit shall mean any letter of credit which is a commercial letter of credit issued in respect of the purchase of
goods or services by one or more of the Loan Parties in the ordinary course of their business. 



        Commitment shall mean as to any Bank the aggregate of its Revolving Credit Commitment and, in the case of the Agent, its Swing Loan
Commitment, and Commitments shall mean the aggregate of the Revolving Credit Commitments and Swing Loan Commitment of all of the Banks. 


        Commitment Fee shall have the meaning assigned to that term in Section 2.3. 


        Compliance Certificate shall have the meaning assigned to such term in Section 7.3.3. 



        Computation Date shall have the meaning assigned to that term in Section 2.10.1. 


        Contamination shall mean the presence or release or threat of release of Regulated Substances in, on, under or emanating to or from the
Property, which pursuant to Environmental Laws requires notification or reporting to an Official Body, or which pursuant to Environmental Laws requires the investigation, cleanup, removal,
remediation, containment, abatement of or other response action or which otherwise constitutes a violation of Environmental Laws. 



        Cumulative Foreign Currency Transaction Adjustments shall mean the "Cumulative Foreign Currency Transaction Adjustment" calculated in
accordance with GAAP (including with regard to FASB-52, as appropriate) and set forth on the Historical Statements and the Financial Statements delivered pursuant to Section 7.3
[Reporting Requirements]. 


        Currency Hedge shall mean an exchange, collar, cap, swap, or similar agreement entered into by the Loan Parties or their Subsidiaries in
order to provide protection to, or minimize the impact upon, the Borrower, the Guarantors and/or their Subsidiaries from changes in the exchange rates among or the capital markets of national
currencies. 


        Designated Income Portion shall mean, for any period of determination, that portion of the net income plus interest, taxes, depreciation
and amortization (calculated in accordance with GAAP) generated by the Designated Foreign Subsidiaries which is, in the aggregate, greater than 20% of the aggregate net income plus interest, taxes,
depreciation and amortization (calculated in accordance with GAAP) of the Borrower and all its Subsidiaries for the prior fiscal quarter, each 



3





 





as calculated and consolidated in accordance with GAAP and measured on a rolling four quarter basis. 


        Designated Foreign Subsidiary shall mean any Foreign Subsidiary less than 65% of whose Subsidiary Shares, LLC Interests or Partnership
Interests are required to be pledged under a Pledge Agreement (because of the exclusion provided for in Section 7.1.11 or otherwise) and which has not ceased to be a Designated Foreign
Subsidiary pursuant to Section 2.14 [Re-Designation of Designated Foreign Subsidiary]. 



        Dividend shall mean (i) the declaration or payment of any dividend on or in respect of any class of the Borrower's capital stock
(other than dividends or distributions payable solely in shares of the Borrower's common stock), (ii) the purchase or retirement of any shares of any class of the Borrower's capital stock
(other than the purchase of shares of the Borrower's common stock by any employee stock ownership plan of the Borrower if the aggregate number of shares owned by such Plan does not at any time exceed
5% of the Borrower's outstanding common stock), and (iii) any other distribution on or in respect of any shares of any class of the Borrower's capital stock. 



        Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the United
States of America. 


        Dollar Equivalent shall mean, with respect to any amount of any currency, the Equivalent Amount of such currency expressed in Dollars. 


        Domestic Subsidiary shall mean a Subsidiary of the Borrower which is organized under the laws of the United States of America or any state
thereof. 


        Drawing Date shall have the meaning assigned to that term in Section 2.11.3.2. 


        EBITDA shall mean, for any period of determination, net income plus interest, taxes, depreciation and amortization of the Borrower and its
Subsidiaries, calculated on a consolidated basis in accordance with GAAP (but without deduction for (i) non-cash non-recurring portions of net income and
(ii) cash non-recurring portions of net income not in excess of $5,000,000 in the aggregate during any such period of determination) and (x) shall be calculated to include
any business acquired in a Permitted Acquisition if either (1) the Borrower provides to the Banks financial statements of such business, prepared in accordance with GAAP for the most
recently-ended fiscal year (or generally accepted accounting principles as applied in the country where such business is based, as reconciled in writing to GAAP and as described on an attachment to
such financial statements) and acceptable to the Agent, and such business (if it is a legal entity) becomes a Guarantor contemporaneously with such Permitted Acquisition if it is a Domestic Subsidiary
or its ownership interests become subject to the Pledge Agreement if it is a Restricted Subsidiary or (2) Required Banks have consented to such inclusions and (y) shall be calculated to
exclude in any period of determination the Designated Income Portion. 


        Environmental Complaint shall mean any written complaint by any Person or Official Body setting forth a cause of action for personal
injury or property damage, natural resource damage, contribution or indemnity for response costs, civil or administrative penalties, criminal fines or penalties, or declaratory or equitable relief
arising under any Environmental Laws or any order, notice of violation, citation, subpoena, request for information or other written notice or demand of any type issued by an Official Body pursuant to
any Environmental Laws. 


        Environmental Laws shall mean all federal, state, local and foreign Laws and any consent decrees, settlement agreements, judgments,
orders, directives, policies or programs issued by or entered into with an Official Body pertaining or relating to: (i) pollution or pollution control; (ii) protection of human health or
the environment; (iii) employee safety in the workplace; (iv) the 



4





 





presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, transport, storage, collection, distribution, disposal or release or
threat of release of Regulated Substances; (v) the presence of Contamination; (vi) the protection of endangered or threatened species; and (vii) the protection of Environmentally
Sensitive Areas. 


        Environmentally Sensitive Area shall mean (i) any wetland as defined by applicable Environmental Laws; (ii) any area
designated as a coastal zone pursuant to applicable Laws, including Environmental Laws; (iii) any area of historic or archeological significance or scenic area as defined or designated by
applicable Laws, including Environmental Laws; (iv) habitats of endangered species or threatened species as designated by applicable Laws, including Environmental Laws; or (v) a
floodplain or other flood hazard area as defined pursuant to any applicable Laws. 



        Equivalent Amount shall mean, at any time, as determined by Agent (which determination shall be conclusive absent manifest error), with
respect to an amount of any currency (the "Reference Currency") which is to be computed as an equivalent amount of another currency (the "Equivalent Currency"): (i) if the Reference Currency
and the Equivalent Currency are the same, the amount of such Reference Currency, or (ii) if the Reference Currency and the Equivalent Currency are not the same, the amount of such Equivalent
Currency converted from such Reference Currency at Agent's spot selling rate (based on the market rates then prevailing and available to Agent) for the sale of such Equivalent Currency for such
Reference Currency at a time determined by Agent on the second Business Day immediately preceding the event for which such calculation is made. 


        Equivalent Currency shall have the meaning assigned to such term in the definition of Equivalent Amount. 


        ERISA shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and
any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect. 



        ERISA Group shall mean, at any time, the Borrower and all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all other entities which, together with the Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code. 


        Euro shall have the meaning assigned to such term in Section 2.10.4.1 


        Event of Default shall mean any of the events described in Section 8.1 and referred to therein as an "Event of Default." 



        Expiration Date shall mean, with respect to the Revolving Credit Commitments, May 31, 2005 (or such earlier date as the Revolving
Credit Commitments are permanently reduced to zero ($0) and terminated). 


        Federal Funds Effective Rate for any day shall mean the rate per annum (based on a year of 360 days and actual days elapsed and
rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal
Reserve Bank computes and announces the weighted average it refers to as the "Federal Funds Effective Rate" as of the date of this Agreement; provided,
if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the "Federal Funds Effective Rate" for such day shall be the Federal Funds Effective Rate for the last day on
which such rate was announced. 



5







  



        Financial Projections shall have the meaning assigned to that term in Section 5.1.8(ii). 


        Foreign Subsidiary shall mean any Subsidiary of the Borrower which is not a Domestic Subsidiary. 



        GAAP shall mean generally accepted accounting principles as are in effect in the United States from time to time, subject to the
provisions of Section 1.3, and applied on a consistent basis both as to classification of items and amounts. 


        Governmental Acts shall have the meaning assigned to that term in Section 2.11.8. 


        Guarantor shall mean each of the parties to this Agreement which is designated as a "Guarantor" on the signature page hereof and each
other Person which joins this Agreement as a Guarantor after the date hereof pursuant to Section 10.18. 



        Guarantor Joinder shall mean a joinder by a Person as a Guarantor under this Agreement, the Guaranty Agreement and the other Loan
Documents in the form of Exhibit 1.1(GJ). 


        Guaranty of any Person shall mean any obligation of such Person guarantying or in effect guarantying any liability or obligation of any
other Person in any manner, whether directly or indirectly, including any agreement to indemnify or hold harmless any other Person, any performance bond or other suretyship arrangement and any other
form of assurance against loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business. 



        Guaranty Agreement shall mean the Guaranty and Suretyship Agreement in substantially the form of  Exhibit 1.1(GA) executed and delivered by each of the Guarantors
to the Agent for the benefit of the Banks. 


        Historical Statements shall have the meaning assigned to that term in Section 5.1.8(i). 


        Indebtedness shall mean, as to any Person at any time, any and all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or in respect of: (i) borrowed money, (ii) amounts raised under or
liabilities in respect of any note purchase or acceptance credit facility, (iii) reimbursement or payment obligations (contingent or otherwise) under or in connection with any letter of credit,
currency swap agreement, interest rate swap, cap, collar or floor agreement or other interest rate management device, (iv) any other transaction (including forward sale or purchase agreements,
capitalized leases, synthetic leases, and conditional sales agreements) having the commercial effect of a borrowing of money entered into by such Person to finance its operations or capital
requirements (but not including trade payables and accrued expenses incurred in the ordinary course of business which are not represented by a promissory note or other evidence of indebtedness and
which are not more than thirty (30) days past due), or (v) the current portion of mandatory redeemable stock or similar interests, or (vi) any Guaranty of Indebtedness for
borrowed money. 


        Ineligible Security shall mean any security which may not be underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as amended. 


        Insolvency Proceeding shall mean, with respect to any Person, (a) a case, action or proceeding with respect to such Person
(i) before any court or any other Official Body under any bankruptcy, insolvency, reorganization or other similar Law now or hereafter in effect, or (ii) for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Loan Party or Restricted Subsidiary or otherwise relating to the liquidation, dissolution,
winding-up or relief of such Person, or (b) any general assignment for the benefit of 



6





 





creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of such Person's creditors generally or any substantial portion of its creditors; undertaken under
any Law. 


        Interest Expense shall mean for any period of determination interest expense accrued, whether or not paid, in each case of the Borrower
and its Subsidiaries determined and consolidated in accordance with GAAP. 


        Interest Period shall mean the period of time selected by the Borrower in connection with (and to apply to) any election permitted
hereunder by the Borrower to have Revolving Credit Loans bear interest under the LIBOR Option. Subject to the last sentence of this definition, such period shall be one, two, three or six Months or,
if available from all of the Banks, one Year. Such Interest Period shall commence on the effective date of such Interest Rate Option, which shall be (i) the Borrowing Date if the Borrower is
requesting new Loans, or (ii) the date of renewal of or conversion to the LIBOR Option if the Borrower is renewing or converting to the LIBOR Option applicable to outstanding Loans.
Notwithstanding the second sentence hereof: (A) any Interest Period which would otherwise end on a date which is not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (B) the Borrower shall not select, convert to or renew an Interest Period for any portion of the Loans that would end after the Expiration Date. 


        Interest Rate Hedge shall mean an interest rate exchange, collar, cap, swap, adjustable strike cap, adjustable strike corridor or similar
agreement entered into by the Loan Parties or their Subsidiaries in order to provide protection to, or minimize the impact upon, the Borrower, the Guarantors and/or their Subsidiaries of increasing
floating rates of interest applicable to Indebtedness. 


        Interest Rate Option shall mean any LIBOR Option or Base Rate Option, as applicable. 


        Interim Statements shall have the meaning assigned to that term in Section 5.1.8(i). 


        Internal Revenue Code shall mean the Internal Revenue Code of 1986, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect. 



        Labor Contracts shall mean all employment agreements, employment contracts, collective bargaining agreements and other agreements among
any Loan Party or Subsidiary of a Loan Party and its employees. 


        Law shall mean any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, release, ruling,
order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or settlement agreement with any Official Body. 


        Letter of Credit shall have the meaning assigned to that term in Section 2.11.1. 



        Letter of Credit Borrowing shall have the meaning assigned to such term in Section 2.11.3.4. 


        Letter of Credit Fee shall have the meaning assigned to that term in Section 2.11.2. 


        Letter of Credit Outstandings shall mean at any time the sum of the Dollar Equivalent of the (i) the aggregate undrawn face amount
of outstanding Letters of Credit and (ii) the aggregate amount of all unpaid and outstanding Reimbursement Obligations and Letter of Credit Borrowings. 



7





 




        Leverage Ratio shall mean the ratio of (x) Indebtedness of the Borrower and its Subsidiaries on a consolidated basis to
(y) EBITDA, calculated as of the end of each fiscal quarter for the prior four (4) fiscal quarters. 


        LIBOR shall mean the following: 



        (A)  with
respect to Loans comprising any Borrowing Tranche to which the LIBOR Option applies for any Interest Period, the interest rate per annum determined by the Agent by
dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate of interest determined by the Agent (in the office of Agent in London) in
accordance with its usual procedures to be the average of the London interbank offered rates of interest per annum for Dollars or an Optional Currency, as applicable, quoted by the British Bankers'
Association as set forth on Dow Jones Markets Service (formerly known as Telerate) (or appropriate successor or, if the British Bankers' Association or its successor ceases to provide such quotes, a
comparable replacement determined by the Agent) display page 3750 (or such other display page on the Dow Jones Markets Service system as may replace display page 3750) at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period for an amount comparable to such Borrowing Tranche and having a borrowing date and a
maturity comparable to such Interest Period by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage. Such LIBOR may also be expressed by the following formula: 



	LIBOR =	 	Average of London interbank offered rates quoted
	 	 	by BBA or appropriate successor as shown on
	 	 	Dow Jones Markets Service display page 3750

1.00- LIBOR Reserve Percentage






The
LIBOR shall be adjusted with respect to any Loan to which the LIBOR Option applies that is outstanding on the effective date of any change in the LIBOR Reserve Percentage as of such effective
date. The Agent shall give prompt notice to the Borrower of the LIBOR as determined or adjusted in accordance herewith, which determination shall be conclusive absent manifest error. 



        LIBOR Option shall mean the option of the Borrower to have Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(ii). 


        LIBOR Reserve Percentage shall mean as of any day the maximum percentage (expressed as a decimal rounded upward to the nearest 1/100 of
1%) as determined by the Agent in effect on such day: (i) as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements
(including supplemental, marginal and emergency reserve requirements) with respect to eurocurrency funding (currently referred to as "Eurocurrency Liabilities"); and (ii) to be maintained by a
Bank as required for reserve liquidity, special deposit, or a similar purpose by any governmental or monetary authority of any country or political subdivision thereof (including any central bank),
against (A) any category of liabilities that includes deposits by reference to which a LIBOR is to be determined, or (B) any category of extension of credit or other assets that includes
Loans or Borrowing Tranches to which a LIBOR applies. 


        Lien shall mean any mortgage, deed of trust, pledge, lien, security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, whether voluntarily or involuntarily given, including any conditional sale or title retention arrangement, and any assignment, deposit arrangement or lease intended as, or having
the effect of, security and any filed financing statement or other notice of any of the foregoing (whether or not a lien or other encumbrance is created or exists at the time of the filing). 



        LLC Interests shall have the meaning given to such term in Section 5.1.2. 



8





 




        Loan shall mean either a Revolving Credit Loan or a Swing Loan and "Loans" shall mean
collectively all Revolving Credit Loans and Swing Loans. 


        Loan Documents shall mean this Agreement, the Agent's Letter, the Guaranty Agreement, the Pledge Agreement, each Guarantor Joinder, and
any other instruments, certificates or documents delivered or contemplated to be delivered hereunder or thereunder or in connection herewith or therewith, as the same may be supplemented or amended
from time to time in accordance herewith or therewith, and Loan Document shall mean any of the Loan Documents. 


        Loan Parties shall mean the Borrower and the Guarantors. 



        Loan Request shall mean a request for a Revolving Credit Loan or a Swing Loan or a request to select, convert to or renew a Base Rate
Option or LIBOR Option with respect to an outstanding Revolving Credit Loan in accordance with Sections 2.5, 3.1 and 3.2. 


        Material Adverse Change shall mean any set of circumstances or events which (a) has or could reasonably be expected to have any
material adverse effect upon the validity or enforceability of this Agreement or any other Loan Document, (b) is or could reasonably be expected to have a material adverse effect on the
business, properties, assets, condition (financial or otherwise) or results of operations of the Loan Parties and the Restricted Subsidiaries taken as a whole, (c) impairs materially or could
reasonably be expected to impair materially the ability of the Loan Parties and the Restricted Subsidiaries taken as a whole to duly and punctually pay or perform its Indebtedness, or
(d) impairs materially or could reasonably be expected to impair materially the ability of the Agent or any of the Banks, to the extent permitted, to enforce their legal remedies pursuant to
this Agreement or any other Loan Document. 


        Month, with respect to an Interest Period under the LIBOR Option, shall mean the interval between the days in consecutive calendar months
numerically corresponding to the first day of such Interest Period. If any LIBOR Interest Period begins on a day of a calendar month for which there is no numerically corresponding day in the month in
which such Interest Period is to end, the final month of such Interest Period shall be deemed to end on the last Business Day of such final month. 


        Multiemployer Plan shall mean any employee benefit plan which is a "multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA and to which the Borrower or any member of the ERISA Group is then making or accruing an obligation to make contributions or, within the preceding five Plan years, has made or had an obligation
to make such contributions. 


        Multiple Employer Plan shall mean a Plan which has two or more contributing sponsors (including the Borrower or any member of the ERISA
Group) at least two of whom are not under common control, as such a plan is described in Sections 4063 and 4064 of ERISA. 


        Notes shall mean the Revolving Credit Notes and the Swing Note. 


        Notices shall have the meaning assigned to that term in Section 10.6. 



        Obligation shall mean any obligation or liability of any of the Loan Parties or the Restricted Subsidiaries to the Agent or any of the
Banks or any Affiliate of any of the Banks, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, under or in
connection with this Agreement, any Notes, the Letters of Credit, the Agent's Letter or any other Loan Document. Obligations shall include the liabilities to any Bank under any Interest Rate Hedge or
Currency Hedge provided by a Bank but shall not include the liabilities to other Persons under any other Interest Rate Hedge or Currency Hedge. 



9





 




        Official Body shall mean any national, federal, state, local or other government or political subdivision or any agency, authority, board,
bureau, central bank, commission, department or instrumentality of either, or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic. 



        Optional Currency shall mean any of the following currencies: British Pound, Japanese Yen and Euro and any other currency approved by
Agent and all of the Banks pursuant to Section 2.10.5. 


        Original Currency shall have the meaning assigned to such term in Section 4.9.1. 


        Other Currency shall have the meaning assigned to such term in Section 4.9.1. 



        Overnight Rate shall mean for any day with respect to any Loans in an Optional Currency, the rate of interest per annum as determined by
the Agent at which overnight deposits in the such currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day in the
applicable offshore interbank market. 


        Participation Advance shall mean, with respect to any Bank, such Bank's payment in respect of its participation in a Letter of Credit
Borrowing according to its Ratable Share pursuant to Section 2.11.4. 


        Partnership Interests shall have the meaning given to such term in Section 5.1.2. 


        PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any successor. 


        Permitted Acquisitions shall have the meaning assigned to such term in Section 7.2.5. 


        Permitted Investments shall mean: 



          (i)  direct
obligations of the United States of America or any agency or instrumentality thereof or obligations backed by the full faith and credit of the United States of
America maturing in twelve (12) months or less from the date of acquisition; 


        (ii)  commercial
paper maturing in 180 days or less rated not lower than A-1, by Standard & Poor's or P-1 by Moody's on the date of
acquisition; 


        (iii)  demand
deposits, time deposits or certificates of deposit maturing within one year in commercial banks whose obligations are rated A-1, A or the equivalent
or better by Standard & Poor's on the date of acquisition; and 



        (iv)  common
funds, common investment pools or mutual funds primarily invested in any of the foregoing items (i), (ii) or (iii) and including without limitation
those certain mutual funds known as The Galaxy Funds, and which funds, if rated, are rated not lower than the equivalent rating required of the permitted investments contained in such fund. 


        Permitted Liens shall mean: 


          (i)  Liens
for taxes, assessments, or similar charges, incurred in the ordinary course of business and which are not yet due and payable; 



        (ii)  Pledges
or deposits made in the ordinary course of business to secure payment of workmen's compensation, or to participate in any fund in connection with workmen's
compensation, unemployment insurance, old-age pensions or other social security programs; 


        (iii)  Liens
of mechanics, materialmen, warehousemen, carriers, or other like Liens, securing obligations incurred in the ordinary course of business that are not yet due and
payable and Liens 



10





 





of landlords securing obligations to pay lease payments that are not yet due and payable or in default; 


        (iv)  Good-faith
pledges or deposits made in the ordinary course of business to secure performance of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, not in excess of
the aggregate amount due thereunder, or to secure statutory obligations, or surety, appeal, indemnity, performance or other similar bonds required in the ordinary course of business; 



        (v)  Encumbrances
consisting of zoning restrictions, easements or other restrictions on the use of real property, none of which materially impairs the use of such property or
the value thereof, and none of which is violated in any material respect by existing or proposed structures or land use; 


        (vi)  Liens,
security interests and mortgages in favor of the Agent for the benefit of the Banks securing the Obligations including liabilities under any Interest Rate Hedge
or Currency Hedge provided by a Bank; 


      (vii)  Liens
on property leased by any Loan Party or Subsidiary of a Loan Party under capital leases (and notice filings in respect of operating leases) permitted in
Section 7.2.12 securing obligations of such Loan Party or Subsidiary to the lessor under such leases; 


      (viii)  Any
Lien existing on the date of this Agreement and described on Schedule 1.1(P),  provided that the principal amount secured thereby is not hereafter
increased, and no additional assets become subject to such Lien (other than pursuant
to customary after-acquired property clauses also described on such Schedule 1.1(P)); 



        (ix)  Purchase
Money Security Interests, provided that the aggregate amount of loans and deferred payments secured by such
Purchase Money Security Interests shall not exceed $3,000,000 (excluding for the purpose of this computation any loans or deferred payments secured by Liens described on  Schedule 1.1(P)); and



        (x)  The
following, (A) if the validity or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently conducted so long as levy
and execution thereon have been stayed and continue to be stayed or (B) if a final judgment is entered and such judgment is discharged within thirty (30) days of entry, and they do not
in the aggregate materially impair the ability of any Loan Party or any Subsidiary to perform its Obligations hereunder or under the other Loan Documents: 



        (1)  Claims
or Liens for taxes, assessments or charges due and payable and subject to interest or penalty, provided that the
applicable Loan Party or Subsidiary maintains such reserves or other appropriate provisions as shall be required by GAAP and pays all such taxes, assessments or charges forthwith upon the commencement
of proceedings to foreclose any such Lien; 



        (2)  Claims,
Liens or encumbrances upon, and defects of title to, real or personal property, including any attachment of personal or real property or other legal process
prior to adjudication of a dispute on the merits; 


        (3)  Claims
or Liens of mechanics, materialmen, warehousemen, carriers, or other statutory nonconsensual Liens; or 


        (4)  Liens
resulting from final judgments or orders described in Section 8.1.6. 




        Person shall mean any individual, corporation, partnership, limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision or agency thereof, or any other entity. 



11







  



        Plan shall mean at any time an employee pension benefit plan (including a Multiple Employer Plan, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (i) is maintained by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained by any entity which was at such time a member of the ERISA Group for
employees of any entity which was at such time a member of the ERISA Group. 


        Pledge Agreement shall mean the pledge agreement or pledge agreements required to be delivered by Borrower and the owners of Restricted
Subsidiaries granting a perfected first-lien security interest to Agent in (x) 65% of the Partnership Interests, LLC Interests and Subsidiary Shares issued by a Foreign Subsidiary
(other than the Designated Foreign Subsidiaries), and (y) 100% of the Partnership Interests, LLC Interests and Subsidiary Shares issued by a Domestic Subsidiary that is a Subsidiary of the
Borrower or a Domestic Subsidiary and is not a Subsidiary of a Foreign Subsidiary. 


        Potential Default shall mean any event or condition which with notice, passage of time or a determination by the Agent or the Required
Banks, or any combination of the foregoing, would constitute an Event of Default. 


        Principal Office shall mean the main banking office of the Agent in Chicago, Illinois, or such other location, as expressly stated herein. 



        Prohibited Transaction shall mean any prohibited transaction as defined in Section 4975 of the Internal Revenue Code or
Section 406 of ERISA for which neither an individual nor a class exemption has been issued by the United States Department of Labor. 


        Property shall mean all real property, both owned and leased, of any Loan Party or Subsidiary of a Loan Party. 


        Purchase Money Security Interest shall mean Liens upon tangible personal property securing loans to any Loan Party or Subsidiary of a Loan
Party or deferred payments by such Loan Party or Subsidiary for the purchase of such tangible personal property. 


        Purchasing Bank shall mean a Bank which becomes a party to this Agreement by executing an Assignment and Assumption Agreement. 


        Ratable Share shall mean the proportion that a Bank's Commitment (excluding the Swing Loan Commitment) bears to the Commitments (excluding
the Swing Loan Commitments) of all of the Banks. 


        Reference Currency shall have the meaning assigned to such term in the definition of Equivalent Amount. 


        Regulated Substances shall mean, without limitation, any substance, material or waste, regardless of its form or nature, defined under
Environmental Laws as a "hazardous substance," "pollutant," "pollution," "contaminant," "hazardous or toxic substance," "extremely hazardous substance," "toxic chemical," "toxic substance," "toxic
waste," "hazardous waste," "special handling waste," "industrial waste," "residual waste," "solid waste," "municipal waste," "mixed waste," "infectious waste," "chemotherapeutic waste," "medical
waste," or "regulated substance" or any other material, substance or waste, regardless of its form or nature, which otherwise is regulated by Environmental Laws. 


        Regulation U shall mean Regulation U, T or X as promulgated by the Board of Governors of the Federal Reserve System, as
amended from time to time. 


        Reimbursement Obligation shall have the meaning assigned to such term in Section 2.11.3.2. 



12





 




        Reportable Event shall mean a reportable event described in Section 4043 of ERISA and regulations thereunder with respect to a Plan
or Multiemployer Plan. 


        Required Banks shall mean 


        (A)  if
there are no Loans, Reimbursement Obligations or Letter of Credit Borrowings outstanding, Required Banks shall mean Banks whose Commitments (excluding the Swing Loan
Commitments) aggregate at least 51% of the Commitments of all of the Banks, or 


        (B)  if
there are Loans, Reimbursement Obligations, or Letter of Credit Borrowings outstanding, Required Banks shall mean: 



          (i)  prior
to a termination of the Commitments hereunder pursuant to Section 8.2.1 or 8.2.2, any Bank or group of Banks if the sum of the Loans (excluding the Swing
Loans), Reimbursement Obligations and Letter of Credit Borrowings of such Banks then outstanding aggregates at least 51% of the total principal amount of all of the Loans (excluding the Swing Loans),
Reimbursement Obligations and Letter of Credit Borrowings then outstanding. 


        (ii)  after
a termination of the Commitments hereunder pursuant to Section 8.2.1 or 8.2.2, any Bank or group of Banks if the sum of the Loans, Reimbursement
Obligations and Letter of Credit Borrowings of such Banks then outstanding aggregates at least 51% of the total principal amount of all of the Loans, Reimbursement Obligations and Letter of Credit
Borrowings then outstanding. 




Reimbursement
Obligations and Letter of Credit Borrowings shall be deemed, for purposes of this definition, to be in favor of the Agent and not a participating Bank if such Bank has not made its
Participation Advance in respect thereof and shall be deemed to be in favor of such Bank to the extent of its Participation Advance if it has made its Participation Advance in respect thereof. 


        Required Environmental Notices shall mean all notices, reports, plans, forms or other filings which pursuant to Environmental Laws,
Required Environmental Permits or at the request or direction of an Official Body either must be submitted to an Official Body or which otherwise must be maintained. 



        Required Environmental Permits shall mean all permits, licenses, bonds, consents, programs, approvals or authorizations required under
Environmental Laws to own, occupy or maintain the Property or which otherwise are required for the operations and business activities of the Borrower or Guarantors. 


        Restricted Subsidiary shall mean collectively (i) the Domestic Subsidiaries required to become Guarantors pursuant to
Section 7.1.11, (ii) the Foreign Subsidiaries of a Domestic Subsidiary or Borrower which are not Subsidiaries of a Foreign Subsidiary, and (iii) all Foreign Subsidiaries
re-designated pursuant to the terms of Section 2.14, irrespective of their ownership. 



        Revolving Credit Commitment shall mean, as to any Bank at any time, the amount initially set forth opposite its name on  Schedule 1.1(B) in the column labeled
"Amount of Commitment for Revolving Credit Loans," and thereafter on Schedule I to the most recent
Assignment and Assumption Agreement, and Revolving Credit Commitments shall mean the aggregate Revolving Credit Commitments of all of the Banks, which,
as of the Closing Date, shall total $60,000,000. 


        Revolving Credit Loans shall mean collectively and Revolving Credit Loan shall mean
separately all revolving credit loans or any revolving credit loan made by the Banks or one of the Banks to the Borrower pursuant to Section 2.1 or 2.11.3. 


        Revolving Credit Note shall mean any Revolving Credit Note of the Borrower in the form of Exhibit 1.1(R)  issued by the Borrower at the request of a Bank pursuant
to Section 4.10 evidencing 



13





 





the Revolving Credit Loans to such Bank, together with all amendments, extensions, renewals, replacements, refinancings or refundings thereof in whole or in part. 


        Revolving Facility Usage shall mean at any time the sum of the Dollar Equivalent amount of Revolving Credit Loans then outstanding and the
Dollar Equivalent amount of Letters of Credit Outstanding. 


        SEC shall mean the Securities and Exchange Commission or any governmental agencies substituted therefor. 



        Section 20 Subsidiary shall mean the Subsidiary of the bank holding company controlling any Bank, which Subsidiary has been granted
authority by the Federal Reserve Board to underwrite and deal in certain Ineligible Securities. 


        Standby Letter of Credit shall mean a Letter of Credit issued to support obligations of one or more of the Loan Parties, contingent or
otherwise, which finance the working capital and business needs of the Loan Parties incurred in the ordinary course of business, but excluding any Letter of Credit under which the stated amount of
such Letter of Credit increases automatically over time. 


        Stockholders' Equity shall mean stockholders' equity as shown on the financial statements delivered pursuant to Section 7.3
[Reporting Requirements] determined in accordance with GAAP. 


        Subsidiary of any Person at any time shall mean (i) any corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest normally entitled to vote for the election of one or more directors or trustees (regardless of any contingency which does or
may suspend or dilute the voting rights) is at such time owned directly or indirectly by such Person or one or more of such Person's Subsidiaries, (ii) any partnership of which such Person is a
general partner or of which 50% or more of the partnership interests is at the time directly or indirectly owned by such Person or one or more of such Person's Subsidiaries, (iii) any limited
liability company of which such Person is a member or of which 50% or more of the limited
liability company interests is at the time directly or indirectly owned by such Person or one or more of such Person's Subsidiaries or (iv) any corporation, trust, partnership, limited
liability company or other entity which is controlled or capable of being controlled by such Person or one or more of such Person's Subsidiaries. 



        Subsidiary Shares shall have the meaning assigned to that term in Section 5.1.2. 


        Swing Loan Commitment shall mean ABN AMRO's commitment to make Swing Loans to the Borrower pursuant to Section 2.1.2 hereof in an
aggregate principal amount up to $5,000,000. 


        Swing Loan Note shall mean the Swing Loan Note of the Borrower in the form of Exhibit 1.1(S)  evidencing the Swing Loans to ABN AMRO, together with all amendments,
extensions, renewals, replacements, refinancings or refundings thereof in whole or in part. 



        Swing Loan Request shall mean a request for Swing Loans made in accordance with Section 2.5.2 hereof. 


        Swing Loans shall mean collectively and Swing Loan shall mean separately all Swing Loans
or any Swing Loan made by ABN AMRO to the Borrower pursuant to Section 2.1.2 hereof. 


        Thermo Electron shall mean Thermo Electron Corporation, a Delaware corporation. 



        Transferor Bank shall mean the selling Bank pursuant to an Assignment and Assumption Agreement. 


        Year, with respect to an Interest Period under the LIBOR Option, shall mean the interval between the days in consecutive calendar years
numerically corresponding to the first day of such Interest Period. 



14





 





        1.2    Construction.    


        Unless
the context of this Agreement otherwise clearly requires, the following rules of construction shall apply to this Agreement and each of the other Loan Documents: 



        1.2.1.    Number; Inclusion.    



        references
to the plural include the singular, the plural, the part and the whole; unless the context clearly indicates otherwise "or" has the inclusive meaning represented by the phrase
"and/or," and "including" has the meaning represented by the phrase "including without limitation"; 




        1.2.2.    Determination.    



        references
to "determination" of or by the Agent or the Banks shall be deemed to include good-faith estimates by the Agent or the Banks (in the case of quantitative
determinations) and good-faith beliefs by the Agent or the Banks (in the case of qualitative determinations) and such determination shall be conclusive absent manifest error; 




        1.2.3.    Agent's Discretion and Consent.    



        whenever
the Agent or the Banks are granted the right herein to act in its or their sole discretion or to grant or withhold consent such right shall be exercised in good faith; 




        1.2.4.    Documents Taken as a Whole.    



        the
words "hereof," "herein," "hereunder," "hereto" and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document as a whole and not
to any particular provision of this Agreement or such other Loan Document; 




        1.2.5.    Headings.    



        the
section and other headings contained in this Agreement or such other Loan Document and the Table of Contents (if any), preceding this Agreement or such other Loan Document are for
reference purposes only and shall not control or affect the construction of this Agreement or such other Loan Document or the interpretation thereof in any respect; 




        1.2.6.    Implied References to this Agreement.    



        article,
section, subsection, clause, schedule and exhibit references are to this Agreement or other Loan Document, as the case may be, unless otherwise specified; 




        1.2.7.    Persons.    



        reference
to any Person includes such Person's successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement or such other Loan Document,
as the case may be, and reference to a Person in a particular capacity excludes such Person in any other capacity; 




        1.2.8.    Modifications to Documents.    



        reference
to any agreement (including this Agreement and any other Loan Document together with the schedules and exhibits hereto or thereto), document or instrument means such agreement,
document or instrument as amended, modified, replaced, substituted for, superseded or restated; 




        1.2.9.    From, To and Through.    



        relative
to the determination of any period of time, "from" means "from and including," "to" means "to but excluding," and "through" means "through and including"; and 




15











  




        1.2.10.    Shall; Will.    



        references
to "shall" and "will" are intended to have the same meaning. 





        1.3    Accounting Principles.    


        Except
as otherwise provided in this Agreement, all computations and determinations as to accounting or financial matters and all financial statements to be delivered pursuant to this
Agreement shall be made and prepared in accordance with GAAP (including principles of consolidation where appropriate), and all accounting or financial terms shall have the meanings ascribed to such
terms by GAAP; provided, however, that all accounting terms used in Section 7.2 [Negative Covenants] (and all defined
terms used in the definition of any accounting term used in Section 7.2 shall have the meaning given to such terms (and defined terms) under GAAP as in effect on the date hereof applied on a
basis consistent with those used in preparing the Annual Statements referred to in Section 5.1.8(i) [Historical Statements]. In the event of any change after the date
hereof in GAAP, and if such change would result in the inability to determine compliance with the financial covenants set forth in Section 7.2 based upon the Borrower's regularly prepared
financial statements by reason of the preceding sentence, then the parties hereto agree to endeavor, in good faith, to agree upon an amendment to this Agreement that would adjust such financial
covenants in a manner that would not affect the substance thereof, but would allow compliance therewith to be determined in accordance with the Borrower's financial statements at that time. 


        1.4    Dollar Equivalents.    


        In
calculating the Commitments, Letter of Credit Outstandings, Revolving Facility Usage and other measures, including the repayment of any Obligation hereunder, each such measure shall
be expressed as a Dollar Equivalent as needed. 


 
 

2. REVOLVING CREDIT AND SWING LOAN FACILITIES


        2.1    Revolving Credit Commitments.    



        2.1.1.    Revolving Credit Loans.    



        Subject
to the terms and conditions hereof and relying upon the representations and warranties herein set forth, each Bank severally agrees to make Revolving Credit Loans in either
Dollars or one or more Optional Currencies to the Borrower at any time or from time to time on or after the date hereof to the Expiration Date provided
that (i) after giving effect to each such Loan the aggregate Dollar Equivalent amount of Loans from such Bank shall not exceed such Bank's Revolving Credit Commitment
minus such Bank's Ratable Share of the Dollar Equivalent amount of Letters of Credit Outstanding, and (ii) no Loan to which the Base Rate Option applies shall be made in an Optional Currency.
Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section 2.1. 


        2.1.2.    Swing Loan Commitment.    


        Subject
to the terms and conditions hereof and relying upon the representations and warranties herein set forth, ABN AMRO may, at its option, cancelable at any time for any reason
whatsoever, make swing loans (the "Swing Loans") to the Borrower at any time or from time to time after the date hereof to, but not including, the Expiration Date, in an aggregate principal amount up
to but not in excess of $5,000,000 (the "Swing Loan Commitment"), provided that the aggregate principal amount of ABN AMRO's Swing Loans and the
Revolving Credit Loans of all the Banks at any one time outstanding shall not exceed the Revolving Credit Commitments of all 



16





 





the Banks. Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section 2.1.2. 



        2.1.3.    Voluntary Reduction of Revolving Credit Commitments.    


        The
Borrower may by written notice delivered to the Agent and the Banks at least ten (10) days prior to the effective date thereof, terminate in whole or in part the Revolving
Credit Commitment. Such reduction shall be effective only upon: (i) the repayment of all Obligations (other then Letter of Credit Outstanding) to an amount not in excess of the Revolving Credit
Commitments as so reduced, (ii) the payment of any amounts due in connection therewith under Section 4.6.2 [Indemnity] and (iii) the delivery to the Agent
of cash collateral equal to the face amount of all Letters of Credit Outstanding on the date of such termination; provided however; the Revolving Credit Commitment shall not be reduced to less than
$40,000,000. 




        2.2    Nature of Banks' Obligations with Respect to Revolving Credit Loans.    


        Each
Bank shall be obligated to participate in each request for Revolving Credit Loans pursuant to Section 2.5.1 [Revolving Credit Loan Requests] in
accordance with its Ratable Share. The aggregate Dollar Equivalent amount of each Bank's Revolving Credit Loans outstanding hereunder to the Borrower at any time shall never exceed its Revolving
Credit Commitment minus its Ratable Share of the Dollar Equivalent amount of Letters of Credit Outstanding, subject to Section 4.5.1. The obligations of each Bank hereunder are several. The
failure of any Bank to perform its obligations hereunder shall not affect the Obligations of the Borrower to any other party nor shall any other party be liable for the failure of such Bank to perform
its obligations hereunder. The Banks shall have no obligation to make Revolving Credit Loans hereunder on or after the Expiration Date. 


        2.3    Commitment Fee.    


        Accruing
from the date hereof until the Expiration Date, the Borrower agrees to pay to the Agent for the account of each Bank, as consideration for such Bank's participation in the
credit facilities hereunder, a nonrefundable commitment fee equal to the applicable percentage under the heading "Commitment Fee" in the definition of Applicable Margin (the  "Commitment Fee"),
calculated on a per annum basis (based on a 360 day year and the actual days elapsed) under the Pricing Grid, multiplied by
each Bank's unused Revolving Credit Commitment. All Commitment Fees shall be payable in arrears on the first Business Day of each calendar quarter after the date hereof and on the Expiration Date or
upon acceleration of the Notes. For purposes of calculating Commitment Fees only, no portion of the Revolving Credit Commitments shall be deemed utilized as a result of outstanding Swing Loans. For
the purpose of calculating Commitment Fees in respect of Revolving Credit Commitments, any portion of the Revolving Credit Commitments unavailable due to outstanding Letters of Credit shall be deemed
to be used amounts. 


        2.4    Revolving Credit Facility Fee.    


        The
Borrower agrees to pay to the Agent for the account of each Bank, as consideration for such Bank's Revolving Credit Commitment, a nonrefundable facility fee established and agreed to
prior to the date hereof and payable on the Closing Date. 


        2.5    Revolving Credit Loan Requests; Swing Loan Requests.    



        2.5.1.    Revolving Credit Loan Requests.    


        Except
as otherwise provided herein, the Borrower may from time to time prior to the Expiration Date request the Banks to make Revolving Credit Loans, or renew or convert the Interest
Rate Option applicable to existing Revolving Credit Loans pursuant to Section 3.2 [Interest Periods], by delivering to the Agent, not later than 12:00 noon (New York
time) (i) three (3) Business Days prior to the proposed Borrowing Date with respect to the making of Revolving 



17





 


Credit Loans in Dollars to which the LIBOR Option applies or prior to the date of conversion to or the renewal of the LIBOR Option for any such Loans and four (4) Business Days prior to the
proposed Borrowing Date with respect to the making of Revolving Credit Loans in an Optional Currency or the date of conversion to or renewal of the LIBOR Option for Revolving Credit Loans in an
Optional Currency; and (ii) one (1) Business Day prior to either the proposed Borrowing Date with respect to the making of a Revolving Credit Loan to which the Base Rate Option applies
or the last day of the preceding Interest Period with respect to the conversion to the Base Rate Option for any Loan, of a duly completed Loan Request therefor substantially in the form of  Exhibit 2.5.1 or a Loan Request by telephone immediately confirmed in writing by letter or facsimile in the form of such Exhibit, it being
understood that the Agent may rely on the authority of any individual making such a telephonic request without the necessity of receipt of such written confirmation. Each Loan Request shall be
irrevocable and shall specify (i) the proposed Borrowing Date; (ii) the aggregate amount of the proposed Loans (expressed in the currency in which such Loans shall be funded and also as
a Dollar Equivalent if such Loans shall be funded in an Optional Currency) comprising each Borrowing Tranche, the Dollar Equivalent amount of which shall be in integral multiples of $100,000 and not
less than $1,000,000 for each Borrowing Tranche to which the LIBOR Option applies and in integral multiples of $500,000 and not less than the lesser of $1,000,000 or the maximum amount available for
Borrowing Tranches to which the Base Rate Option applies; (iii) whether the LIBOR Option or Base Rate Option shall apply to the proposed Loans comprising the applicable Borrowing Tranche;
(iv) the currency in which such Loans shall be funded if the Borrower is electing the LIBOR Option; and (v) in the case of a Borrowing Tranche to which the LIBOR Option applies, an
appropriate Interest Period for the Loans comprising such Borrowing Tranche. 


        2.5.2.    Swing Loan Requests.    


        Except
as otherwise provided herein, the Borrower may from time to time prior to the Expiration Date request ABN AMRO to make Swing Loans by delivery to ABN AMRO not later than 12:00
o'clock noon New York time on the proposed Borrowing Date of a duly completed request therefor substantially in the form of Exhibit 2.5.2 hereto
or a request by telephone immediately confirmed in writing by letter or facsimile (each, a "Swing Loan Request"), it being understood that the Agent may rely on the authority of any individual making
such a telephonic request without the necessity of receipt of such written confirmation. Each Swing Loan Request shall be irrevocable and shall specify the proposed Borrowing Date and the principal
amount of such Swing Loan, which shall be not less than $250,000. 




        2.6    Making Revolving Credit Loans and Swing Loans.    



        2.6.1.    Making Revolving Credit Loans.    



        The
Agent shall, promptly after receipt by it of a Loan Request pursuant to Section 2.5.1 [Revolving Credit Loan Requests], notify the Banks of its receipt
of such Loan Request specifying: (i) the proposed Borrowing Date and the time and method of disbursement of the Revolving Credit Loans requested thereby; (ii) the amount and type of each
such Revolving Credit Loan and the applicable Interest Period (if any); and (iii) the apportionment among the Banks of such Revolving Credit Loans as determined by the Agent in accordance with
Section 2.2 [Nature of Banks' Obligations with respect to Revolving Credit Loans]. Each Bank shall remit the principal amount of each Revolving Credit Loan to the Agent
such that the Agent is able to, and the Agent shall, to the extent the Banks have made funds available to it for such purpose and subject to Section 6.2 [Each Additional Loan or
Letter of Credit], fund such Revolving Credit Loans to the Borrower in U.S. Dollars and immediately available funds at the account specified by the Borrower prior to 2:00 p.m., New
York time, on the applicable Borrowing Date, provided that if any Bank fails to remit such funds to the Agent in a timely manner, the Agent may elect in
its sole 



18





 





discretion to fund with its own funds the Revolving Credit Loans of such Bank on such Borrowing Date, and such Bank shall be subject to the repayment obligation in Section 9.16
[Availability of Funds]. 


        2.6.2.    Making Swing Loans.    


        So
long as ABN AMRO elects to make Swing Loans, ABN AMRO shall, after receipt by it of a Swing Loan Request pursuant to Section 2.5.2 [Swing Loan
Requests], fund such Swing Loan to the Borrower in U.S. Dollars and immediately available funds at the Principal Office prior to 2:00 o'clock p.m. New York time on the Borrowing
Date. Any such Swing Line Loan shall reduce availability under the Revolving Credit Loans on a dollar-for-dollar basis. 




        2.7    Swing Loan Note.    


        The
obligation of the Borrower to repay the unpaid principal amount of the Swing Loans made to it by ABN AMRO together with interest thereon shall be evidenced by a demand promissory
note of the Borrower dated the Closing Date in substantially the form attached hereto as Exhibit 1.1(S) payable to the order of ABN AMRO in a
face amount equal to the Swing Loan Commitment. 


        2.8    Use of Proceeds.    


        The
proceeds of the Revolving Credit Loans shall be used by the Borrower (a) to refinance existing indebtedness, including the repayment of all principal and interest owing to
Thermo Electron, (b) for working capital, (c) for Permitted Acquisitions, and (d) for general corporate purposes of the Borrower. 


        2.9    Borrowings to Repay Swing Loans.    



        ABN
AMRO may, at its option, exercisable at any time for any reason whatsoever, demand repayment of the Swing Loans, and each Bank shall make a Revolving Credit Loan in an amount equal
to such Bank's Ratable Share of the aggregate principal amount of the outstanding Swing Loans, plus, if ABN AMRO so requests, accrued interest thereon, provided
that no Bank shall be obligated in any event to make Revolving Credit Loans in excess of its Revolving Credit Commitment and provided
further that the Borrower shall repay, and ABN AMRO shall demand that Swing Loans be repaid, within fourteen (14) days after the making of each Swing Loan (and not after
the Expiration Date). Revolving Credit Loans made pursuant to the preceding sentence shall bear interest at the Base Rate Option and shall be deemed to have been properly requested in accordance with
Section 2.5.1 without regard to any of the requirements of that provision. ABN AMRO shall provide notice to the Banks (which may be telephonic or written notice by letter or facsimile) that
such Revolving Credit Loans are to be made under this Section 2.9 and of the apportionment among the Banks, and the Banks shall be unconditionally obligated to fund such Revolving Credit Loans
(whether or not the conditions specified in Section 2.5.1 are then satisfied) by the time ABN AMRO so requests, which shall not be earlier than 2:00 p.m. New York time on the next
Business Day after the date the Banks receive such notice from ABN AMRO. 


        2.10    Utilization of Commitments in Optional Currencies.    



        2.10.1.    Periodic Computations of Dollar Equivalent Amounts of Loans and Letters of Credit Outstanding.    


        The
Agent will determine the Dollar Equivalent amount of (i) proposed Revolving Credit Loans or Letters of Credit to be denominated in an Optional Currency as of the requested
Borrowing Date or date of issuance, as the case may be, and (ii) all outstanding Revolving Credit Loans and Letters of Credit Outstanding denominated in an Optional Currency as of the 25th day
of each month (each such date, a "Computation Date"). 


        2.10.2.    Notices From Banks That Optional Currencies Are Unavailable to Fund New Loans.  



19





 





        The Banks shall be under no obligation to make the Revolving Credit Loans requested by the Borrower which are denominated in an Optional Currency if any Bank notifies the Agent by
5:00 p.m. (New York time) four (4) Business Days prior to the Borrowing Date for such Revolving Credit Loans that such Bank cannot provide its share of such Revolving Credit Loans in
such Optional Currency. In the event the Agent timely receives a notice from a Bank pursuant to the preceding sentence, the Agent will notify the Borrower no later than 12:00 noon (New York time)
three (3) Business Days prior to the Borrowing Date for such Revolving Credit Loans that the Optional Currency is not then available for such Revolving Credit Loans, and the Agent shall
promptly thereafter notify the Banks of the same. If the Borrower receives a notice described in the preceding sentence, the Borrower may, by notice to the Agent not later than 2:00 p.m. (New
York time) three (3) Business Days prior to the Borrowing Date for such Revolving Credit Loans, withdraw the Loan Request for such Revolving Credit Loans. If the Borrower withdraws such Loan
Request, the Agent will promptly notify each Bank of the same and the Banks shall not make such Revolving Credit Loans. If the Borrower does not withdraw such Loan Request before such time,
(i) the Borrower shall be deemed to have requested that the Revolving Credit Loans referred to in its Loan Request shall be made in Dollars in an amount equal to the Dollar Equivalent amount of
such Revolving Credit Loans and shall bear interest under the Base Rate Option, and (ii) the Agent shall promptly deliver a notice to each Bank stating: (A) that such Revolving Credit
Loans shall be made in Dollars and shall bear interest under the Base Rate Option, (B) the aggregate amount of such Revolving Credit Loans, and (C) such Bank's Pro Rata Share of such
Revolving Credit Loans. 


        2.10.3.    Notices From Banks That Optional Currencies Are Unavailable to Fund Renewals of the Loan LIBOR Option.    


        If
the Borrower delivers a Loan Request requesting that the Banks renew the LIBOR Option with respect to an outstanding Borrowing Tranche of Revolving Credit Loans denominated in an
Optional Currency, the Banks shall be under no obligation to renew such LIBOR Option if any Bank delivers to the Agent a notice by 5:00 p.m. (New York time) four (4) Business Days prior
to effective date of such renewal that such Bank cannot continue to provide Revolving Credit Loans in such Optional Currency. In the event the Agent timely receives a notice from a Bank pursuant to
the preceding sentence, the Agent will notify the Borrower no later than 12:00 noon (New York time) three (3) Business Days prior to the renewal date that the renewal of such Revolving Credit
Loans in such Optional Currency is not then available, and the Agent shall promptly thereafter notify the Banks of the same. If the Agent shall have so notified the Borrower that any such continuation
of Optional Currency Loans is not then available, any notice of renewal with respect thereto shall be deemed withdrawn, and such Optional Currency Loans shall be redenominated into Base Rate Loans in
Dollars with effect from the last day of the Interest Period with respect to any such Optional Currency Loans. The Agent will promptly notify the Borrower and the Banks of any such redenomination, and
in such notice, the Agent will state the aggregate Dollar Equivalent amount of the redenominated Optional Currency Loans as of the Computation Date with respect thereto and such Bank's Ratable Share
thereof. 


        2.10.4.    European Monetary Union.    



        2.10.4.1    Payments In Euros Under Certain Circumstances.    


        If,
as a result of the addition of any nation into the European monetary union, (i) any Optional Currency ceases to be lawful currency of the nation issuing the same and is
replaced by a European common currency (the "Euro") or (ii) any Optional Currency (other than the Euro) and the Euro are at the same time recognized by any governmental authority of the nation
issuing such currency as lawful currency of such nation and the Agent or the Required Banks shall so request in a notice delivered to the Borrower, then any amount payable 




20





 



hereunder by any part hereto in such Currency shall instead by payable in the Euro and the amount so payable shall be determined by translating the amount payable in such Optional Currency to the
Euro at the exchange rate recognized by the European Central Bank for the purpose of implementing the European monetary union (and the provisions governing payments in Optional Currencies in this
Agreement shall apply to such payment in the Euro as if such payment in the Euro were a payment in an Optional Currency). Prior to the occurrence of the event or events described in clause (i)
or (ii) of the preceding sentence, each amount payable hereunder in any Optional Currency will, except as otherwise provided herein, continue to be payable only in that currency. 


        2.10.4.2    Additional Compensation Under Certain Circumstances.    



        The
Borrower agrees, at the request of any Bank to compensate such Bank for any loss, cost, expense or reduction in return that such Bank shall reasonably determine shall be incurred or
sustained by such Bank as a result of the implementation of European monetary union and that would not have been incurred or sustained but for the transactions provided for herein. A certificate of
any Bank setting forth such Bank's determination of the amount or amounts necessary to compensate such Bank shall be delivered to the Borrower and shall be conclusive absent manifest error so long as
such determination is made on a reasonable basis. The Borrower shall pay such Bank the amount shown as due on any such certificate within ten (10) days after receipt thereof. 



        2.10.4.3    Determinations.    


        The
Banks shall determine the applicability of, and the amount due under, Section 2.10.4.1 or 2.10.4.2 in a manner that is consistent with the manner in which the Banks apply
similar provisions and calculate similar amounts payable to the Banks by other borrowers having provisions in their loan agreement with the Banks that are comparable to these sections. 


        2.10.4.4    Amendment to this Agreement.    



        The
parties hereto agree, at the time of or at any time following the addition of any relevant nation into the European monetary union whose currency is an Optional Currency other than
the Euro, to use
reasonable efforts to enter into an agreement amending this Agreement in order to reflect the conversion of Loans made in an Optional Currency in the currency of such nation into Loans in Euros. 




        2.10.5.    Requests for Additional Optional Currencies.  



        The Borrower may deliver to the Agent a written request that Revolving Credit Loans hereunder also be permitted to be made in any other lawful currency (other than Dollars), in addition
to the currencies specified in the definition of "Optional Currency" herein provided that such currency must be freely traded in the offshore interbank
foreign exchange markets, freely transferable, freely convertible into Dollars and available to the Banks in the applicable interbank market. The Agent will promptly notify the Banks of any such
request promptly after the Agent receives such request. The Agent and each Bank may grant or accept such request in their sole discretion. The Agent will promptly notify the Borrower of the acceptance
or rejection by the Agent and each of the Banks of the Borrower's request. The requested currency shall be approved as an Optional Currency hereunder only if the Agent and all of the Banks approve of
the Borrower's request. 



21





 





        2.11    Letter of Credit Subfacility.    



        2.11.1.    Issuance of Letters of Credit.    



        The
Borrower may request the issuance of a letter of credit (each a "Letter of Credit") on behalf of itself or any Restricted Subsidiary by delivering to the Agent as issuing bank a
completed application and agreement for letters of credit, and signed by the Borrower and all account parties of such Letter of Credit and in such form as the Agent may specify from time to time, by
no later than 10:00 a.m., New York time, at least five (5) Business Days, or such shorter period as may be agreed to by the Agent, in advance of the proposed date of issuance. Each
Letter of Credit shall be either a Standby Letter of Credit or a Commercial Letter of Credit and may be denominated in either Dollars or an Optional Currency. Subject to the terms and conditions
hereof and in reliance on the agreements of the other Banks set forth in this Section 2.11, the Agent will issue a Letter of Credit provided that
each Letter of Credit shall (A) have a maximum maturity of twelve (12) months from the date of issuance, and (B) in no event expire later than five (5) Business Days prior
to the Expiration Date and providing that in no event shall (i) the Dollar Equivalent amount of Letters of Credit Outstanding exceed, at any one time, $10,000,000 or (ii) the Revolving
Facility Usage exceed, at any one time, the Revolving Credit Commitments. Letters of Credit with a one-year tenor may provide for renewals for additional periods ending not after the date
referred to in item (B) above. 


        2.11.2.    Letter of Credit Fees.    


        The
Borrower shall pay in Dollars (i) to the Agent as issuing bank for the ratable account of the Banks a fee (the "Letter of Credit Fee") at a per annum rate equal to the
Applicable Margin then in effect with respect to LIBOR Loans on the face amount of each Letter of Credit, and (ii) to the Agent for its own account a fronting fee calculated at a rate agreed
upon in the Agent's Letter and computed on the basis of a year of 360 days and actual days elapsed), which fees shall be computed on the daily average Dollar Equivalent amount of Letters of
Credit Outstanding and shall be payable quarterly in arrears commencing with the first Business Day of each January, April, July and October following issuance of each Letter of Credit and on the
Expiration Date. The Borrower shall also pay to the Agent as issuing bank in Dollars for the Agent's sole account the Agent's then in effect customary fees and administrative expenses payable with
respect to the Letters of Credit as the Agent may generally charge or incur from time to time in connection with the issuance, maintenance, modification (if any), assignment or transfer (if any),
negotiation, and administration of Letters of Credit. 


        2.11.3.    Disbursements, Reimbursement.    



        2.11.3.1    Immediately
upon the Issuance of each Letter of Credit in accordance with Section 2.11.1, each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Agent a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Bank's Ratable Share of the maximum amount available
to be drawn under such Letter of Credit and the amount of such drawing, respectively. 




22











  





        2.11.3.2    In
the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the Agent will promptly notify the Borrower. Upon
receipt of such notice, the Borrower shall reimburse (such obligation to reimburse the Agent shall sometimes be referred to as a "Reimbursement Obligation") the Agent in Dollars prior to 12:00 noon
(New York time) on each date that an amount is paid by the Agent under any Letter of Credit (each such date, a "Drawing Date") in an amount equal to the Dollar Equivalent amount so paid by the Agent.
In the event the Borrower fails to reimburse the Agent for the full Dollar Equivalent amount of any drawing under any Letter of Credit by 12:00 noon (New York time) on the Drawing Date, the Agent will
promptly notify each Bank thereof, and the Borrower shall be deemed to have requested that Revolving Credit Loans be made by the Banks in Dollars under the Base Rate Option to be disbursed on the
Drawing Date under such Letter of Credit, subject to the amount of the unutilized portion of the Revolving Credit Commitment and subject to the conditions set forth in Section 6.2
[Each Additional Loan or Letter of Credit] other than any notice requirements. Any notice given by the Agent pursuant to this Section 2.11.3.2 may be oral if immediately
confirmed in writing; provided that the lack of such a confirmation shall not affect the conclusiveness or binding effect of such notice. 


        2.11.3.3    Each
Bank shall upon any notice pursuant to Section 2.11.3.2 make available to the Agent an amount in Dollars in immediately available funds equal to its
Ratable Share of the Dollar Equivalent amount of the drawing, whereupon the participating Banks shall (subject to Section 2.11.3.4) each be deemed to have made a Revolving Credit Loan in
Dollars under the Base Rate Option to the Borrower in that amount. If any Bank so notified fails to make available in Dollars to the Agent for the account of the Agent the amount of such Bank's
Ratable Share of such Dollar Equivalent amount by no later than 2:00 p.m., New York time on the Drawing Date, then interest shall accrue on such Bank's obligation to make such payment, from the
Drawing Date to the date on which such Bank makes such payment (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three days following the Drawing Date and
(ii) at a rate per annum equal to the rate applicable to Loans under the Base Rate Option on and after the fourth day following the Drawing Date. The Agent will promptly give notice of the
occurrence of the Drawing Date, but failure of the Agent to give any such notice on the Drawing Date or in sufficient time to enable any Bank to effect such payment on such date shall not relieve such
Bank from its obligation under this Section 2.11.3.3. 


        2.11.3.4    With
respect to any unreimbursed drawing that is not converted into Revolving Credit Loans under the Base Rate Option to the Borrower in whole or in part as
contemplated by Section 2.11.3.2, because of the Borrower's failure to satisfy the conditions set forth in Section 6.2 [Each Additional Loan or Letter of Credit]
other than any notice requirements or for any other reason, the Borrower shall be deemed to have incurred from the Agent a borrowing (each a "Letter of Credit Borrowing") in Dollars in the Dollar
Equivalent amount of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum applicable to the Revolving
Credit Loans under the Base Rate Option; for purposes of determining the available Revolving Credit Commitments of the Banks at any time, each outstanding Letter of Credit Borrowing
shall be deemed to have utilized the Revolving Credit Commitments of the Banks pro rata in accordance with such respective Revolving Credit Commitments. Each Bank's payment to the Agent pursuant to
Section 2.11.3.3 shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a "Participation Advance" from such Bank in satisfaction
of its participation obligation under this Section 2.11.3. 




23





 






        2.11.4.    Repayment of Participation Advances.    



        2.11.4.1    Upon
(and only upon) receipt by the Agent for its account of immediately available funds from the Borrower (i) in reimbursement of any payment made by the
Agent under the Letter of Credit with respect to which any Bank has made a Participation Advance to the Agent, or (ii) in payment of interest on such a payment made by the Agent under such a
Letter of Credit, the Agent will pay to each Bank, in the same funds as those received by the Agent, the amount of such Bank's Ratable Share of such funds, except the Agent shall retain the amount of
the Ratable Share of such funds of any Bank that did not make a Participation Advance in respect of such payment by Agent. 


        2.11.4.2    If
the Agent is required at any time to return to any Loan Party or any Subsidiary of a Loan Party, or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by any Loan Party or any Subsidiary of a Loan Party to the Agent pursuant to Section 2.11.4.1 in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon, each Bank shall, on demand of the Agent, forthwith return to the Agent the amount of its Ratable Share of any amounts so returned by
the Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Bank to the Agent, at a rate per annum equal to the Federal Funds Effective Rate in
effect from time to time. 




        2.11.5.    Documentation.    


        Each
Loan Party agrees to be bound by the terms of the Agent's application and agreement for letters of credit and the Agent's written regulations and customary practices relating to
letters of credit, though such interpretation may be different from such Loan Party's own. In the event of a conflict between such application or agreement and this Agreement, this Agreement shall
govern. It is understood and agreed that, except in the case of gross negligence or willful misconduct, the Agent shall not be liable for any error, negligence and/or mistakes, whether of omission or
commission, in following any Loan Party's instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto. 


        2.11.6.    Determinations to Honor Drawing Requests.    



        In
determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the Agent shall be responsible only to determine that the documents and
certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit. 


        2.11.7.    Nature of Participation and Reimbursement Obligations.    


        Each
Bank's obligation in accordance with this Agreement to make the Revolving Credit Loans or Participation Advances, as contemplated by Section 2.11.3, as a result of a drawing
under a Letter of Credit, and the Obligations of the Borrower to reimburse the Agent upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Section 2.11 under all circumstances, including the following circumstances: 



          (i)  any
set-off, counterclaim, recoupment, defense or other right which such Bank may have against the Agent or any of its Affiliates, the Borrower or any other
Person for any reason whatsoever; 


        (ii)  the
failure of any Loan Party or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Section 2.1
[Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests], 2.6.1[Making Revolving Credit Loans; Swing Loans] or 6.2
[Each Additional Loan or Letter of Credit] or as otherwise set forth in 




24





 






this Agreement for the making of a Revolving Credit Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Banks to
make Participation Advances under Section 2.11.3; 


        (iii)  any
lack of validity or enforceability of any Letter of Credit; 


        (iv)  any
claim of breach of warranty that might be made by any Loan Party or any Subsidiary of a Loan Party or any Bank against any beneficiary of a Letter of Credit, or the
existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Loan Party or any Subsidiary of a Loan Party or any Bank may have at any time
against a beneficiary, successor beneficiary any transferee or assignee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Agent or its
Affiliates or any Bank or any other Person or, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction
between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for which any Letter of Credit was procured); 


        (v)  the
lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency,
accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in
connection with any Letter of Credit, or the transport of any property or provisions of services relating to a Letter of Credit, in each case even if the Agent or any of the Agent's Affiliates has
been notified thereof; 


        (vi)  payment
by the Agent or any of its Affiliates under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply
with the terms of such Letter of Credit; 


      (vii)  the
solvency of, or any acts of omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a
Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit; 



      (viii)  any
failure by the Agent or any of Agent's Affiliates to issue any Letter of Credit in the form requested by any Loan Party, unless the Agent has received written
notice from such Loan Party of such failure within three Business Days after the Agent shall have furnished such Loan Party a copy of such Letter of Credit and such error is material and no drawing
has been made thereon prior to receipt of such notice; 


        (ix)  any
adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Loan Party or Subsidiaries of a Loan Party; 


        (x)  any
breach of this Agreement or any other Loan Document by any party thereto; 


        (xi)  the
occurrence or continuance of an Insolvency Proceeding with respect to any Loan Party; 


      (xii)  the
fact that an Event of Default or a Potential Default shall have occurred and be continuing; 


      (xiii)  the
fact that the Expiration Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; and 


      (xiv)  any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing. 




25





 






        2.11.8.    Indemnity.    


        In
addition to amounts payable as provided in Section 9.5 [Reimbursement and Indemnification of Agent by the Borrower], the Borrower hereby agrees to
protect, indemnify, pay and save harmless the Agent and any of Agent's Affiliates that has issued a Letter of Credit from and against any and all claims, demands, liabilities, damages, taxes,
penalties, interest, judgments, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of internal counsel) which the Agent or any of
Agent's Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (A) the gross negligence or willful
misconduct of the Agent as determined by a final judgment of a court of competent jurisdiction or (B) the wrongful dishonor by the Agent or any of Agent's Affiliates of a proper demand for
payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "Governmental Acts"). 


        2.11.9.    Liability for Acts and Omissions.    


        As
between any Loan Party and the Agent, or the Agent's Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the Agent shall not be responsible for any of the following including any losses or damages to any Loan
Party or other Person or property relating therefrom: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the
application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the Agent or the
Agent's Affiliates shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such
Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of
any Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any Loan Party and any beneficiary of any Letter of Credit or any such
transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of
Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of the Agent or the Agent's Affiliates, as applicable, including any Governmental Acts, and none of the above shall affect or impair, or prevent the
vesting of, any of the Agent's or the Agent's Affiliates
rights or powers hereunder. Nothing in the preceding sentence shall relieve the Agent from liability for the Agent's gross negligence or willful misconduct in connection with actions or omissions
described in such clauses (i) through (viii) of such sentence. In no event shall the Agent or the Agent's Affiliates be liable to any Loan Party for any indirect, consequential, incidental,
punitive, exemplary or special damages or expenses (including without limitation attorneys' fees), or for any damages resulting from any change in the value of any property relating to a Letter of
Credit. 


        Without
limiting the generality of the foregoing, the Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the Agent or such
Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may 



26





 





honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously
dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to
reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the Agent or its Affiliate; (iv) may honor any drawing that is payable
upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and
shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank
claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Agent or its Affiliate in
any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any
drawing in connection with any Letter of Credit that is the subject to such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform
in any way with such Letter of Credit. 


        In
furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Agent or the Agent's Affiliates under or in connection
with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Agent or the Agent's Affiliates under any resulting
liability to the Borrower or any Bank. 




        2.12    Currency Repayments.    


        Notwithstanding
anything contained herein to the contrary, the entire amount of principal of and interest on any Loan made in an Optional Currency shall be repaid in the same Optional
Currency in which such Loan was made, provided, however, that if it is impossible or illegal for Borrower to effect payment of a Loan in the Optional Currency in which such Loan was made, or if
Borrower defaults in its obligations to do so, the Required Banks may at their option permit such payment to be made (i) at and to a different location, subsidiary, affiliate or correspondent
of Agent, or (ii) in the Equivalent Amount of Dollars or (iii) in an Equivalent Amount of such other currency (freely convertible into Dollars) as the Required Banks may solely at their
option designate. Upon any events described in (i)
through (iii) of the preceding sentence, Borrower shall make such payment and Borrower agrees to hold each Bank harmless from and against any loss incurred by any Bank arising from the cost to such
Bank of any premium, any costs of exchange, the cost of hedging and covering the Optional Currency in which such Loan was originally made, and from any change in the value of Dollars, or such other
currency, in relation to the Optional Currency that was due and owing. Such loss shall be calculated for the period commencing with the first day of the Interest Period for such Loan and continuing
through the date of payment thereof. Without prejudice to the survival of any other agreement of Borrower hereunder, Borrower's obligations under this Section 2.12 shall survive termination of
this Agreement. 


        2.13    Optional Currency Amounts.    


        Notwithstanding
anything contained herein to the contrary, Agent may, with respect to notices by Borrower for Loans in an Optional Currency or voluntary prepayments of less than the full
amount of an Optional Currency Borrowing Tranche, engage in reasonable rounding of the Optional Currency amounts requested to be loaned or repaid; and, in such event, Agent shall promptly notify
Borrower and the Banks of such rounded amounts and Borrower's request or notice shall thereby be deemed to reflect such rounded amounts. 


27





 



        2.14    Re-Designation of Designated Foreign Subsidiary.    



        A
Foreign Subsidiary which is a Designated Foreign Subsidiary may, at the Borrower's option, cease to be a Designated Foreign Subsidiary by (i) the Borrower delivering written
notice to the Agent and the Banks of the same at least ten (10) Business Days prior to the proposed effective date of a re-designation under this Section 2.14 and
(ii) causing 65% of the Subsidiary Shares, LLC Interests or Partnership Interests of such Foreign Subsidiary to be subject to a perfected first-priority Lien in favor of the Agent under
a Pledge Agreement. Such re-designation shall be effective on the later to occur of items (i) and (ii) above. 


 
 

3. INTEREST RATES    
  


        3.1    Interest Rate Options.    


        The
Borrower shall pay interest in respect of the outstanding unpaid principal amount of the Loans as selected by it from the Base Rate Option or LIBOR Option set forth below applicable
to the Loans, it being understood that, subject to the provisions of this Agreement, the Borrower may select different Interest Rate Options and different Interest Periods to apply simultaneously to
the Loans comprising different Borrowing Tranches and may convert to or renew one or more Interest Rate Options with respect to all or any portion of the Loans comprising any Borrowing Tranche,  provided that there shall not be at any one time outstanding more than five (5) Borrowing Tranches in the aggregate among all of the Loans. If at
any time the designated rate applicable to any Loan made by any Bank exceeds such Bank's highest lawful rate, the rate of interest on such Bank's Loan shall be limited to such Bank's highest lawful
rate. Interest on the principal amount of each Loan made in an Optional Currency shall be paid by the Borrower in such Optional Currency. 



        3.1.1.    Revolving Credit Interest Rate Options.    


        The
Borrower shall have the right to select from the following Interest Rate Options applicable to the Revolving Credit Loans (subject to the provisions in Section 3.1.2
[Swing Loan Interest Rate Options] regarding Swing Loans), except that no Loan to which the ABR shall apply may be made in an Optional Currency: 



        (i)    Base Rate Option:    A fluctuating rate per annum (computed on the basis of a year of 360 days, for the
actual number of days elapsed) equal to the ABR plus the Applicable Margin, such interest rate to change automatically from time to time effective as of the effective date of each change in the ABR;
or 


        (ii)    LIBOR Option:    A rate per annum (computed on the basis of a year of 360 days and actual days elapsed,  provided that,
for Loans made in an Optional Currency for which a 365-day or 366-day basis is the only market practice available
to the Agent, such rate shall be calculated on the basis of a year of 365 or 366 days, as the case may be for the actual days elapsed) equal to the LIBOR plus the Applicable Margin. 




        3.1.2.    Swing Loan Interest Rate Options.    


        Swing
Loans shall bear interest in accordance with Section 3.1.1(i) [Base Rate Option] except to the extent that the Borrower and Agent agree in writing to
a different rate of interest based upon short-term money market rates; provided, however, that any Swing Loans with respect to which ABN AMRO demands payment pursuant to Section 2.9
[Borrowings to Repay Swing Loans] shall bear interest on and after such demand for payment in accordance with Section 3.1.1 (i) [Base Rate
Option] notwithstanding any other interest rate agreed to by the Borrower and ABN AMRO. 



28





 




        3.1.3.    Rate Quotations.    


        The
Borrower may contact the Agent at the Principal Office of the Agent on or before the date on which a Loan Request is to be delivered to receive an indication of the interest rates
and the applicable currency exchange rates then in effect, but it is acknowledged that such projection shall not be binding on the Agent or the Banks nor will it affect the rate of interest or the
calculation of Equivalent Amounts which thereafter are actually in effect when the election is made. 


        3.1.4.    Change in Fees or Interest Rates.    


        If
the Applicable Margin or any applicable fee amount is increased or reduced pursuant to the terms and conditions of this Agreement with respect to any period for which the Borrower has
already paid interest or fees, the Agent shall recalculate the additional interest or fees due from or due to the Borrower with respect to such period and shall, within fifteen (15) Business
Days after the Borrower notifies the Agent of such increase or decrease, give the Borrower and the Banks notice of such recalculation. 



        3.1.4.1    Any
additional interest or fee due from the Borrower shall be paid to the Agent for the account of the Banks on the next date on which an interest or fee payment is
due; provided, however, that if there are no Loans or Letters of Credit outstanding or if the Loans are due and payable, such additional interest or fee
shall be paid promptly after receipt of written request for payment from the Agent. 



        3.1.4.2    Any
interest or fee refund due to the Borrower shall be credited against payments otherwise due from the Borrower on the next interest or fee payment due date or, if
the Loans have been repaid and there are no Letters of Credit outstanding and the Banks are no longer committed to lend under this Agreement, the Banks shall pay the Agent for the account of the
Borrower such interest or Commitment Fee refund not later than five Business Days after written notice from the Agent to the Banks and the Agent shall promptly remit such amounts due to the Borrower. 





        3.2    Interest Periods.    



        At
any time when the Borrower shall select, convert to or renew a LIBOR Option, the Borrower shall notify the Agent thereof at its Principal Office by delivering a Loan Request at least
four (4) Business Days prior to the effective date of such Interest Rate Option, with respect to an Optional Currency Loan, and three (3) Business Days prior to the effective date of
such Interest Rate Option, with respect to a Dollar Loan. The notice shall specify an Interest Period during which such Interest Rate Option
shall apply. Notwithstanding the preceding sentence, the following provisions shall apply to any selection of, renewal of, or conversion to a LIBOR Option: 



        3.2.1.    Amount of Borrowing Tranche.    


        the
Dollar Equivalent amount of each Borrowing Tranche of LIBOR Loans shall be in integral multiples of $100,000 and not less than $1,000,000; 


        3.2.2.    Renewals.    


        in
the case of the renewal of a LIBOR Option at the end of an Interest Period, the first day of the new Interest Period shall be the last day of the preceding Interest Period, without
duplication in payment of interest for such day. 



29







  





        3.3    Interest After Default.    



        To
the extent permitted by Law, upon the occurrence of an Event of Default and until such time such Event of Default shall have been cured or waived: 



        3.3.1.    Letter of Credit Fees, Interest Rate.    


        the
Letter of Credit Fees and the rate of interest for each Loan otherwise applicable pursuant to Section 2.11.2 [Letter of Credit Fees] or
Section 3.1 [Interest Rate Options], respectively, shall be increased by 2.0% per annum; and 


        3.3.2.    Other Obligations.    


        each
other Obligation hereunder if not paid when due shall bear interest at a rate per annum equal to the sum of the rate of interest applicable under the Base Rate Option plus an
additional 2.0% per annum from the time such Obligation becomes due and payable and until it is paid in full. 


        3.3.3.    Acknowledgment.    



        The
Borrower acknowledges that the increase in rates referred to in this Section 3.3 [Interest After Default] reflects, among other things, the fact that
such Loans or other amounts have become a substantially greater risk given their default status and that the Banks are entitled to additional compensation for such risk; and all such interest shall be
payable by Borrower upon demand by Agent. 




        3.4    LIBOR Unascertainable; Illegality; Increased Costs; Deposits Not Available.    



        3.4.1.    Unascertainable.    


        If
on any date on which a LIBOR would otherwise be determined with respect to Loans, the Agent shall have determined that: 



          (i)  adequate
and reasonable means do not exist for ascertaining such LIBOR, or 


        (ii)  a
contingency has occurred which materially and adversely affects the London interbank eurodollar market relating to the LIBOR, the Agent shall have the rights
specified in Section 3.4.3 [Agent's and Bank's Rights]. 




        3.4.2.    Illegality; Increased Costs; Deposits Not Available.    


        If
at any time any Bank shall have determined that: 



          (i)  the
making, maintenance or funding of any Loan to which a LIBOR Option applies has been made impracticable or unlawful by compliance by such Bank in good faith with any
Law or any interpretation or application thereof by any Official Body or with any request or directive of any such Official Body (whether or not having the force of Law), or 


        (ii)  such
LIBOR Option will not adequately and fairly reflect the cost to such Bank of the establishment or maintenance of any such Loan, or 


after
making all reasonable efforts, deposits of the relevant amount in Dollars or in the Optional Currency (as applicable) for the relevant Interest Period for a Loan, or to banks generally, to which
a LIBOR Option applies, respectively, are not available to such Bank with respect to such Loan, or to banks generally, in the interbank eurodollar market, then the Agent shall have the rights
specified in Section 3.4.3 [Agent's and Bank's Rights]. 




30





 






        3.4.3.    Agent's and Bank's Rights.    


        In
the case of any event specified in Section 3.4.1 [Unascertainable] above, the Agent shall promptly so notify the Banks and the Borrower thereof, and in
the case of an event specified in Section 3.4.2 [Illegality, Etc.] above, such Bank shall promptly so notify the Agent at its Principal Office and endorse a certificate
to such notice as to the specific circumstances of such notice, and the Agent shall promptly send copies of such notice and certificate to the other Banks and the Borrower. Upon such date as shall be
specified in such notice (which shall not be earlier than the date such notice is given), the obligation of (A) the Banks, in the case of such notice given by the Agent, or (B) such
Bank, in the case of such notice given by such Bank, to allow the Borrower to select, convert to, or renew a LIBOR Option or select an Optional Currency (as applicable) shall be suspended until the
Agent shall have later notified the Borrower, or such Bank shall have later notified the Agent, of the Agent's or such Bank's, as the case may be, determination that the circumstances giving rise to
such previous determination no longer exist. If at any time the Agent makes a determination under Section 3.4.1 [Unascertainable] and the Borrower has previously
notified the Agent of its selection of, conversion to, or renewal of a LIBOR Option and such Interest Rate Option has not yet gone into effect, such notification shall be deemed to provide for the
selection of, conversion to, or renewal of the Base Rate Option otherwise available with respect to such Loans if the Borrower has requested the LIBOR Option. If any Bank notifies the Agent of a
determination under Section 3.4.2 [Illegality], the Borrower shall, subject to the Borrower's indemnification Obligations under Section 4.6.2
[Indemnity], as to any Loan of the Bank to which a LIBOR Option applies, on the date specified in such notice either (i) as applicable, convert such Loan to the Base
Rate Option otherwise available with respect to such Loan or select a different Optional Currency or Dollars, or (ii) prepay such Loan in accordance with Section 4.4
[Voluntary Prepayments]. Absent due notice from the Borrower of conversion or prepayment, such Loan shall automatically be converted to the Base Rate Option otherwise available
with respect to such Loan upon such specified date. The Banks shall determine the applicability of, and the amount due under, Sections 3.4.1 or 3.4.2 in a manner that is consistent with the manner in
which the Banks apply similar provisions and calculate similar amounts payable to the Banks by other borrowers having provisions in their loan agreements with such Banks that are comparable to the
applicable Sections 3.4.1 or 3.4.2. 




        3.5    Selection of Interest Rate Options.    



        If
the Borrower fails to select a new Interest Period or Optional Currency to apply to any Borrowing Tranche of Loans under the LIBOR Option at the expiration of an existing Interest
Period applicable to such Borrowing Tranche in accordance with the provisions of Section 3.2 [Interest Periods], the Borrower shall be deemed to have converted such
Borrowing Tranche to the Base Rate Option or to a Dollar Loan, as applicable, commencing upon the last day of the existing Interest Period. 


 
 

4. PAYMENTS    
  


        4.1    Payments.    


        All
payments and prepayments to be made in respect of principal, interest, Commitment Fees, Revolving Credit Facility Fees, Letter of Credit Fees, Agent's Fee or other fees or amounts
due from the Borrower hereunder or in connection herewith shall be payable prior to 2:00 p.m., New York time, on the date when due without presentment, demand, protest, or notice of any kind,
all of which are hereby expressly waived by the Borrower, and without set-off, counterclaim, or other deduction of any nature, and an action therefor shall immediately accrue. Such
payments shall be made to the Agent at its Principal Office, or at such location as Agent shall otherwise direct, for the account of ABN AMRO with respect to the Swing Loans and for the ratable
accounts of the Banks with respect to the 


31





 


Revolving Credit Loans, in U.S. Dollars except that payments of principal or interest shall be made in the currency in which such Loan was made, and in immediately available funds, and the Agent
shall promptly distribute such amounts to the Banks in immediately available funds, provided that in the event payments are received by
2:00 p.m., New York time, by the Agent with respect to the Loans and such payments are not distributed to the Banks on the same day received by the Agent, the Agent shall pay the Banks the
Federal Funds Effective Rate in the case of Loans or other amounts due in Dollars, or the Overnight Rate in the case of Loans or other amounts due in an Optional Currency, with respect to the amount
of such payments for each day held by the Agent and not distributed to the Banks. The Agent's and each Bank's statement of account, ledger, or other relevant record shall, in the absence of manifest
error, be conclusive as the statement of the amount of principal of and interest on the Loans and other amounts owing under this Agreement (including the Equivalent Amounts of the applicable
currencies where such computations are required) and shall be deemed an "account stated." 


        4.2    Pro Rata Treatment of Banks.    


        Each
borrowing of Revolving Credit Loans shall be allocated to each Bank according to its Ratable Share, and each selection of, conversion to, or renewal of any Interest Rate Option
applicable to Revolving Credit Loans and each payment or prepayment by the Borrower with respect to principal or interest on the Revolving Credit Loans or Commitment Fees, Revolving Credit Facility
Fees, Letter of Credit Fees, or other fees (except for the Agent's Fee or other amounts due from the Borrower hereunder to the Banks with respect to the Revolving Credit Loans, shall (except as
provided in Section 3.4.3 [Agent's and Bank's Rights] in the case of an event specified in Section 3.4 [LIBOR Unascertainable; Etc.],
Section 4.4.2 [Replacement of a Bank] or Section 4.6 [Additional Compensation in Certain Circumstances]) be made in proportion to the
applicable Revolving Credit Loans outstanding from each Bank and, if no such Loans are then outstanding, in proportion to the Ratable Share of each Bank. Notwithstanding any of the foregoing, each
borrowing or payment or prepayment by the Borrower of principal, interest, fees or other amounts from the Borrower with respect to Swing Loans shall be made by or to ABN AMRO according to
Section 2. 


        4.3    Interest Payment Dates.    



        Interest
on Loans to which the Base Rate Option applies shall be due and payable in arrears on the first Business Day of each January, April, July and October after the date hereof and
on the Expiration Date or upon acceleration of any Loan. Interest on Loans to which the LIBOR Option applies shall be
due and payable in the currency in which such Loan was made on the last day of each Interest Period for those Loans and, if such Interest Period is longer than three (3) Months, also on the
90th day of such Interest Period. Interest on mandatory prepayments of principal under Section 4.5 [Mandatory Prepayments] shall be made in the currency in which such
Loan was made and shall be due on the date such mandatory prepayment is due. Interest on the principal amount of each Loan or other monetary Obligation shall be due and payable in the currency in
which such Loan was made on demand after such principal amount or other monetary Obligation becomes due and payable (whether on the stated maturity date, upon acceleration or otherwise). 


        4.4    Voluntary Prepayments.    



        4.4.1.    Right to Prepay.    


        The
Borrower shall have the right at its option from time to time to prepay the Loans in whole or part without premium or penalty (except as provided in Section 4.4.2
[Replacement of a Bank] below or in Section 4.6 [Additional Compensation in Certain Circumstances]) in the currency in which such Loan was made: 



          (i)  at
any time with respect to any Loan to which the Base Rate Option applies, 




32





 


        (ii)  on
the last day of the applicable Interest Period with respect to Loans to which a LIBOR Option applies, 


        (iii)  on
the date specified in a notice by any Bank pursuant to Section 3.4 [LIBOR Unascertainable, Etc.] with respect to any Loan to which a
LIBOR Option applies. 




        Whenever
the Borrower desires to prepay any part of the Loans, it shall provide a prepayment notice to the Agent at its Principal Office by 12:00 noon (New York time) at least three
(3) Business Days prior to the date of prepayment with respect to Loans to which the LIBOR Option applies and by 12:00 noon (New York time) on the Business Day date of prepayment with respect
to Loans to which the Base Rate Option applies and Swing Loans, setting forth the following information: 



        (x)  the
date, which shall be a Business Day, on which the proposed prepayment is to be made; 


        (y)  a
statement indicating the application of the prepayment between the Swing Loans and Revolving Credit Loans; and 



        (z)  the
total principal amount and currency of such prepayment, the Dollar Equivalent amount of which shall not be less than $250,000 for any Swing Loan or $1,000,000 for
any Revolving Credit Loan. 




        All
prepayment notices shall be irrevocable. The principal amount of the Loans for which a prepayment notice is given, together with interest on such principal amount except with respect
to Loans to which the Base Rate Option applies, shall be due and payable on the date specified in such prepayment notice as the date on which the proposed prepayment is to be made in the currency in
which such Loan was made. Except as provided in Section 3.4.3 [Agent's and Bank's Rights], if the Borrower prepays a Loan but fails to specify the applicable Borrowing
Tranche which the Borrower is prepaying, the prepayment shall be applied (i) first to Revolving Credit Loans; and (ii) after giving effect to the allocations in clause (i) above
and in the preceding sentence, first to Loans to which the Base Rate Option applies, then to Dollar Loans to which the LIBOR Option applies, and then to Optional Currency Loans. Any prepayment
hereunder shall be subject to the Borrower's Obligation to indemnify the Banks under Section 4.6.2 [Indemnity]. 


        4.4.2.    Replacement of a Bank.    


        In
the event any Bank (i) gives notice under Section 3.4 [LIBOR Unascertainable, Etc.] or Section 4.6.1 [Increased Costs,
Etc.], (ii) does not fund Revolving Credit Loans because the making of such Loans would contravene any Law applicable to such Bank, or (iii) becomes subject to the control of
an Official Body (other than normal and customary supervision), then the Borrower shall have the right at its option, with the consent of the Agent, which shall not be unreasonably withheld, to prepay
the Loans of such Bank in whole, together with all interest accrued thereon, and terminate such Bank's Commitment within thirty (30) days after an event described in Clause (iii)
directly above, or within ninety (90) days after (x) receipt of such Bank's notice under Section 3.4 [LIBOR Unascertainable, Etc.] or 4.6.1
[Increased Costs, Etc.], (y) the date such Bank has failed to fund Revolving Credit Loans because the making of such Loans would contravene Law applicable to such Bank,
or (z) the date such Bank became subject to the control of an Official Body, as applicable; provided that the Borrower shall also pay to such
Bank at the time of such prepayment any amounts required under Section 4.6 [Additional Compensation in Certain Circumstances] and any accrued interest due on such amount
and any related fees; provided, however, that the Commitment and any Loans of such Bank shall be provided by one or more of the remaining Banks or a
replacement bank acceptable to the Agent or, upon payment of every such Loan and all related interest, fees, costs, and expenses (including those payable under Section 4.6.2
[Indemnity]), the Commitments of such Bank are permanently terminated; provided, 



33





 





further, the remaining Banks shall have no obligation hereunder to increase their Commitments or provide any Loan of such Bank. Notwithstanding the foregoing, the Agent may only be replaced subject
to the requirements of Section 9.14 [Successor Agent] and provided that all Letters of Credit shall have expired or been
terminated or replaced. 


        4.4.3.    Change of Lending Office.    


        Each
Bank agrees that upon the occurrence of any event giving rise to increased costs or other special payments under Section 3.4.2 [Illegality, Etc.] or
4.6.1 [Increased Costs, Etc.] with respect to such Bank, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Bank)
to designate another lending office for any Loans or Letters of Credit affected by such event, provided that such designation is made on such terms that
such Bank and its lending office suffer no economic, legal, or regulatory disadvantage, with the objective of avoiding the consequence of the event giving rise to the operation of such Sections.
Nothing in this Section 4.4.3 [Change of Lending Office] shall affect or postpone any of the Obligations of the Borrower or any other Loan Party or the rights of the
Agent or any Bank provided in this Agreement. 




        4.5    Mandatory Prepayments.    



        4.5.1.    Currency Fluctuations.    


        If
on any Computation Date, the Revolving Facility Usage is equal to or greater than 105% of the Commitments as a result of a change in exchange rates between one (1) or more
Optional Currencies and Dollars, then the Agent shall notify the Borrower of the same. The Borrower shall pay or prepay Loans (subject to Borrower's indemnity obligations under Sections 4.4
[Voluntary Prepayments] and 4.6 [Additional Compensation in Certain Circumstances]) within one (1) Business Day after receiving such notice such
that the Revolving Facility Usage shall not exceed the aggregate Commitments after giving effect to such payments or prepayments. 


        4.5.2.    Application Among Interest Rate Options.    


        All
prepayments required pursuant to this Section 4.5 shall first be applied among the Interest Rate Options to the principal amount of the Loans subject to the Base Rate Option,
then to Dollar Loans subject to a LIBOR Option and then to Optional Currency Loans subject to the LIBOR Option. In accordance with Section 4.6.2 [Indemnity], the
Borrower shall indemnify the Banks for any loss or expense, including loss of margin, incurred with respect to any such prepayments applied against Loans subject to a LIBOR Option on any day other
than the last day of the applicable Interest Period. 




        4.6    Additional Compensation in Certain Circumstances.    



        4.6.1.    Increased Costs or Reduced Return Resulting From Taxes, Reserves, Capital Adequacy Requirements, Expenses,
Etc.    


        If
any Law, guideline or interpretation or any change in any Law, guideline or interpretation or application thereof by any Official Body charged with the interpretation or
administration thereof or compliance with any request or directive (whether or not having the force of Law) of any central bank or other Official Body: 



          (i)  subjects
any Bank to any tax or changes the basis of taxation with respect to this Agreement, the Loans or payments by the Borrower of principal, interest, fees, or
other amounts due from the Borrower hereunder (except for taxes on the overall net income of such Bank), 



        (ii)  imposes,
modifies or deems applicable any reserve, special deposit or similar requirement against credits or commitments to extend credit extended by, or assets (funded
or 




34





 






contingent) of, deposits with or for the account of, or other acquisitions of funds by, any Bank or any lending office of any Bank, or 


        (iii)  imposes,
modifies or deems applicable any capital adequacy or similar requirement (A) against assets (funded or contingent) of, or letters of credit, other
credits or commitments to extend credit extended by, any Bank, or (B) otherwise applicable to the obligations of any Bank or any lending office of any Bank under this Agreement, and the result
of any of the foregoing is to increase the cost to, reduce the income receivable by, or impose any expense (including loss of margin) upon any Bank or its lending office with respect to this
Agreement, or the making, maintenance, or funding of any part of the Loans (or, in the case of any capital adequacy or similar requirement, to have the effect of reducing the rate of return on any
Bank's or its holding company's capital, taking into consideration such Bank's or holding company's customary policies with respect to capital adequacy) by an amount which such Bank in its sole
discretion deems to be material, such Bank shall from time to time notify the Borrower and the Agent of the amount determined in good faith (using any averaging and attribution methods employed in
good faith) by such Bank to be necessary to compensate such Bank for such increase in cost, reduction of income, additional expense, or reduced rate of return. Such notice shall set forth in
reasonable detail the basis for such determination. Such amount shall be due and payable by the Borrower to such Bank ten (10) Business Days after such notice is given. The Banks shall
determine the applicability of, and the amount due under, this Section Sections 4.6.1 in a manner that is consistent with the manner in which the Banks apply similar provisions and calculate similar
amounts payable to the Banks by other borrowers having provisions in their loan agreements with the Banks that are comparable to this Section 4.6.1 




        4.6.2.    Indemnity.    


        In
addition to the compensation required by Section 4.6.1 [Increased Costs, Etc.], the Borrower shall indemnify each Bank against all liabilities, losses
or expenses (including loss of margin, any loss or expense incurred in liquidating or employing deposits from third parties and any loss or expense incurred in connection with funds acquired by a Bank
to fund or maintain Loans subject to a LIBOR Option) which such Bank sustains or incurs as a consequence of any 



          (i)  payment,
prepayment, conversion or renewal of any Loan to which a LIBOR Option applies on a day other than the last day of the corresponding Interest Period (whether or
not such payment or prepayment is mandatory, voluntary, or automatic and whether or not such payment or prepayment is then due), or 


        (ii)  attempt
by the Borrower to revoke (expressly, by later inconsistent notices, or otherwise) in whole or part any Loan Requests under Section 2.5
[Revolving Credit Loan Requests; Swing Loan Requests] or Section 3.2 [Interest Periods] or notice relating to prepayments under
Section 4.4 [Voluntary Prepayments], or 


        (iii)  default
by the Borrower in the performance or observance of any covenant or condition contained in this Agreement or any other Loan Document, including any failure of
the Borrower to pay when due (by acceleration or otherwise) any principal of or interest on the Loans, any fee or any other amount due hereunder. 




If
any Bank sustains or incurs any such loss or expense, it shall from time to time notify the Borrower of the amount determined in good faith by such Bank (which determination may include such
assumptions, allocations of costs and expenses and averaging or attribution methods as such Bank shall deem reasonable) to be necessary to indemnify such Bank for such loss or expense. Such notice
shall set forth in reasonable detail the basis for such determination. Such amount shall 



35





 


be due and payable by the Borrower to such Bank ten (10) Business Days after such notice is given. 




        4.7    Interbank Market Presumption.    


        For
all purposes of this Agreement and each Note with respect to any aspects of the LIBOR, any Loan under the LIBOR Option or any Optional Currency, each Bank and Agent shall be presumed
to have obtained rates, funding, currencies, deposits, and the like in the applicable interbank market regardless whether it did so or not; and, each Bank's and Agent's determination of amounts
payable under, and actions required or authorized by, Sections 3.4 [LIBOR Unascertainable, Etc.] and 4.6 [Additional Compensation in Certain
Circumstances] shall be calculated, at each Bank's and Agent's option, as though each Bank and Agent funded its Percentage Interest in each Borrowing Tranche of Loans under the LIBOR
Option through the purchase of deposits of the types and maturities corresponding to the
deposits used as a reference in accordance with the terms hereof in determining the LIBOR applicable to such Loans, whether in fact that is the case. 



        4.8    Taxes.    



        4.8.1.    No Deductions.    


        All
payments made by Borrower hereunder and under each Note shall be made free and clear of and without deduction for any present or future taxes, levies, imposts, deductions, charges,
or withholdings, and all liabilities with respect thereto, excluding taxes imposed on the net income of any Bank and all income and franchise taxes applicable to any Bank of the United States (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings, and liabilities being hereinafter referred to as "Taxes"). If
Borrower shall be required by Law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional sums payable under this Section 4.8.1) each Bank receives an amount equal to the sum it would have received had no
such deductions been made, (ii) Borrower shall make such deductions and (iii) Borrower shall timely pay the full amount deducted to the relevant tax authority or other authority in
accordance with applicable Law. The affected Bank will take reasonable steps as are requested by the Borrower at the Borrower's expense to obtain any refund that is available with respect to Taxes for
which the Borrower has compensated such Bank and will promptly remit any such refund as may be received to the Borrower. 


        4.8.2.    Stamp Taxes.    


        In
addition, Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges, or similar levies which arise from any payment made
hereunder or from the execution, delivery, or registration of, or otherwise with respect to, this Agreement or any Note (hereinafter referred to as "Other Taxes"). 



        4.8.3.    Indemnification for Taxes Paid by a Bank.    


        Borrower
shall indemnify each Bank for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable
under this Section 4.8.3) paid by any Bank and any liability (including penalties, interest, and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted, provided that there is a reasonable and legal basis for the assertion of such Taxes. This indemnification shall be made within 30 days from the date a Bank
makes written demand therefor. Each Bank shall promptly pay over to the Borrower any refunds received by it from taxing authorities or otherwise based upon Taxes paid by such Bank as to which Borrower
has indemnified the Bank. 



36





 




        4.8.4.    Certificate.    


        Within
30 days after the date of any payment of any Taxes by Borrower based upon payments made by Borrower hereunder, Borrower shall furnish to each Bank, at its address referred
to herein, the original or a certified copy of a receipt evidencing payment thereof. If no Taxes are payable in respect of any payment by Borrower, such Borrower shall, if so requested by a Bank,
provide a certificate of an officer of Borrower to that effect. 


        4.8.5.    Survival.    


        Without
prejudice to the survival of any other agreement of Borrower hereunder, the agreements and obligations of Borrower contained in Sections 4.8.1 through 4.8.4 shall survive the
payment in full of principal and interest hereunder and under any instrument delivered hereunder. 




        4.9    Judgment Currency.    



        4.9.1.    Currency Conversion Procedures for Judgments.    


        If
for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder or under a Note in any currency (the "Original Currency") into another currency (the
"Other Currency"), the parties hereby agree, to the fullest extent permitted by Law, that the rate of exchange used shall be that at which in accordance with normal banking procedures each Bank could
purchase the Original Currency with the Other Currency after any premium and costs of exchange on the Business Day preceding that on which final judgment is given. 


        4.9.2.    Indemnity in Certain Events.    


        The
obligation of Borrower in respect of any sum due from Borrower to any Bank hereunder in a particular Optional Currency shall, notwithstanding any judgment in an Other Currency,
whether pursuant to a judgment or otherwise, be discharged only to the extent that, on the Business Day following receipt by any Bank of any sum adjudged to be so due in such Other Currency, such Bank
may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to
such Bank in the Original Currency, Borrower agrees, as a separate obligation and notwithstanding any such judgment or payment, to indemnify such Bank against such loss. 




        4.10    Notes.    


        Upon
the request of any Bank, the Revolving Credit Loans made by such Bank may be evidenced by a Revolving Credit Note in the form of  Exhibit 1.1(R).


 
 

5. REPRESENTATIONS AND WARRANTIES


        5.1    Representations and Warranties.    


        The
Loan Parties, jointly and severally, represent and warrant to the Agent and each of the Banks as follows: 



        5.1.1.    Organization and Qualification.    


        Each
Loan Party and each Subsidiary of each Loan Party is a corporation, partnership or limited liability company duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization. Each Loan Party and each Subsidiary of each Loan Party has the legal right and corporate power and authority to own or lease its properties and to engage in the
business it presently conducts or proposes to conduct. Each Loan Party and each Subsidiary of each Loan Party is duly licensed or qualified and in good standing in each jurisdiction where the property
owned or leased by it or the nature of the business transacted by it or both makes such licensing or qualification necessary, except where the failure so to qualify would not cause or constitute a
Material Adverse Change. 



37







  



        5.1.2.    Subsidiaries.    


        Schedule 5.1.2 states the name of each of the Borrower's Subsidiaries, its jurisdiction of incorporation, its authorized capital
stock, the issued and outstanding shares (referred to herein as the "Subsidiary Shares") and the owners thereof if it is a corporation, its outstanding partnership interests (the "Partnership
Interests") if it is a partnership and its outstanding limited liability company interests, interests assigned to managers thereof and the voting rights associated therewith (the "LLC Interests") if
it is a limited liability company. Schedule 5.1.2 also describes whether each Subsidiary is a Domestic Subsidiary or a Foreign Subsidiary and whether such Subsidiary is, or is required to be, a
Restricted Subsidiary under the terms of this Agreement. The Borrower and each Subsidiary of the Borrower has good and marketable title to all of the Subsidiary Shares, Partnership Interests and LLC
Interests it purports to own, free and clear in each case of any Lien other than Permitted Liens. All Subsidiary Shares, Partnership Interests and LLC Interests have been validly issued, and all
Subsidiary Shares are fully paid and nonassessable. All capital contributions and other consideration required to be made or paid in connection with the issuance of the Partnership Interests and LLC
Interests have been made or paid, as the case may be. There are no options, warrants or other rights outstanding to purchase any such Subsidiary Shares, Partnership Interests or LLC Interests except
as indicated on Schedule 5.1.2.


        5.1.3.    Power and Authority.    


        Each
Loan Party has full power to enter into, execute, deliver and carry out this Agreement and the other Loan Documents to which it is a party, to incur the Indebtedness contemplated by
the Loan Documents and to perform its Obligations under the Loan Documents to which it is a party, and all such actions have been duly authorized by all necessary proceedings on its part. 


        5.1.4.    Validity and Binding Effect.    


        This
Agreement has been duly and validly executed and delivered by each Loan Party, and each other Loan Document which any Loan Party is required to execute and deliver on or after the
date hereof will have been duly executed and delivered by such Loan Party on the required date of delivery of such Loan Document. This Agreement and each other Loan Document constitutes, or will
constitute, legal, valid and binding obligations of each Loan Party which is or will be a party thereto on and after its date of delivery thereof, enforceable against such Loan Party in accordance
with its terms, except to the extent that enforceability of any of such Loan Document may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforceability of creditors' rights generally or limiting the right of specific performance. 


        5.1.5.    No Conflict.    


        Neither
the execution and delivery of this Agreement or the other Loan Documents by any Loan Party nor the consummation of the transactions herein or therein contemplated or compliance
with the terms and provisions hereof or thereof by any of them will conflict with, constitute a default under or result in any breach of (i) the terms and conditions of the certificate of
incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents of any Loan Party or
(ii) if such would cause or constitute a Material Adverse Change, any Law or any agreement or instrument or order, writ, judgment, injunction or decree to which any Loan Party or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to which it is subject, or result in the creation or enforcement of any Lien, charge or encumbrance whatsoever upon any
property (now or hereafter acquired) of any Loan Party or any of its Subsidiaries (other than Liens granted under the Loan Documents). 



38





 




        5.1.6.    Litigation.    


        There
are no actions, suits, proceedings or investigations pending or, to the knowledge of any Loan Party, threatened against such Loan Party or any Subsidiary of such Loan Party at law
or equity before any Official Body which individually or in the aggregate would cause or constitute a Material Adverse Change. None of the Loan Parties or any Subsidiaries of any Loan Party is in
violation of any order, writ, injunction or any decree of any Official Body which would cause or constitute a Material Adverse Change. 


        5.1.7.    Title to Properties.    


        Each
Loan Party and each Subsidiary of each Loan Party has good and marketable title to or valid leasehold interest in all properties, assets and other rights which it purports to own or
lease or which are reflected as owned or leased on its books and records, free and clear of all Liens and encumbrances except Permitted Liens, and subject to the terms and conditions of the applicable
leases other than properties, assets and other rights that are immaterial to the selling Loan Party or Subsidiary or that are sold or otherwise transferred in the ordinary course of business. All
leases of property are in full force and effect without the necessity for any consent which has not previously been obtained upon consummation of the transactions contemplated hereby. 


        5.1.8.    Financial Statements.    



        (i)    Historical Statements.    The Borrower has delivered to the Agent copies of its audited consolidated
year-end financial statements for and as of the end of the two (2) fiscal year period ended December, 2001 (the "Annual Statements"). In addition, the Borrower has delivered to the
Agent copies of its unaudited consolidated interim financial statements for the fiscal year to date and as of the end of the fiscal quarter ended closest to March 31, 2002 (the "Interim
Statements") (the Annual and Interim Statements being collectively referred to as the "Historical Statements"). The Historical Statements were compiled from the books and records maintained by the
Borrower's management, are correct and complete in all material respects and fairly present in all material respects the consolidated financial condition of the Borrower and its Subsidiaries as of
their dates and the results of operations for the fiscal periods then ended and have been prepared in accordance with GAAP consistently applied, subject (in the case of the Interim Statements only) to
the absence of footnotes and normal year-end audit adjustments. 


        (ii)    Financial Projections.    The Borrower has delivered to the Agent financial projections of the Borrower and
its Subsidiaries for the period ending December 2005 derived from various assumptions of the Borrower's management (the "Financial Projections"). The Financial Projections represent a
reasonable range of possible results in light of the history of the business, present and foreseeable conditions and the intentions of the Borrower's management. The Financial Projections accurately
reflect the liabilities of the Borrower and its Subsidiaries upon consummation of the transactions contemplated hereby as of the Closing Date. 


        (iii)    Accuracy of Financial Statements.    Neither the Borrower nor any Subsidiary of the Borrower has any
liabilities, contingent or otherwise, or forward or long-term commitments that are not disclosed in the Historical Statements or in the notes thereto, and except as disclosed therein there
are no unrealized or anticipated losses from any commitments of the Borrower or any Subsidiary of the Borrower in each case which would cause or constitute a Material Adverse Change. 




39





 






        5.1.9.    Use of Proceeds; Margin Stock; Section 20 Subsidiaries.    



        5.1.9.1    General.    


        The
Loan Parties intend to use the proceeds of the Loans in accordance with Section 7.1.10 [Use of Proceeds]. 


        5.1.9.2    Margin Stock.    


        None
of the Loan Parties or any Subsidiaries of any Loan Party engages or intends to engage principally, or as one of its important activities, in the business of extending credit for
the purpose, immediately, incidentally or ultimately, of purchasing or carrying margin stock (within the meaning of Regulation U). No part of the proceeds of any Loan has been or will be used,
immediately, incidentally or ultimately, to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or to refund Indebtedness
originally incurred for such purpose, or for any purpose which entails a violation of or which is inconsistent with the provisions of the regulations of the Board of Governors of the Federal Reserve
System. None of the Loan Parties or any Subsidiary of any Loan Party holds or intends to hold margin stock in such amounts that more than 25% of the reasonable value of the assets of any Loan Party or
Subsidiary of any Loan Party are or will be represented by margin stock. 


        5.1.9.3    Section 20 Subsidiaries.    



        The
Loan Parties do not intend to use and shall not use any portion of the proceeds of the Loans, directly or indirectly, to purchase during the underwriting period, or for thirty
(30) days thereafter, Ineligible Securities being underwritten by a Section 20 Subsidiary. 




        5.1.10.    Full Disclosure.    


        Neither
this Agreement nor any other Loan Document, nor any certificate, statement, agreement or other documents furnished to the Agent or any Bank in connection herewith or therewith,
contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein, in light of the circumstances under which
they were made, not misleading. Except as disclosed in the Borrower's public filings with the SEC, there is no fact known to any Loan Party which materially adversely affects the business, property,
assets, financial condition, results of operations or prospects of any Loan Party or Subsidiary of any Loan Party which has not been set forth in this Agreement or in the certificates, statements,
agreements or other documents furnished in writing to the Agent and the Banks prior to or at the date hereof in connection with the transactions contemplated hereby. 


        5.1.11.    Taxes.    



        All
federal, state, local and other tax returns required to have been filed with respect to each Loan Party and each Subsidiary of each Loan Party have been filed, and payment or
adequate provision has been made for the payment of all taxes, fees, assessments and other governmental charges which have or may become due pursuant to said returns or to assessments received, except
to the extent that such
taxes, fees, assessments and other charges are being contested in good faith by appropriate proceedings diligently conducted and for which such reserves or other appropriate provisions, if any, as
shall be required by GAAP shall have been made. There are no agreements or waivers extending the statutory period of limitations applicable to any federal income tax return of any Loan Party or
Subsidiary of any Loan Party for any period except for any such waivers entered into by Thermo Electron for tax periods ending on or before November 15, 2001, which in all events will not cause
or constitute a Material Adverse Change. 



40





 




        5.1.12.    Consents and Approvals.    



        No
consent, approval, exemption, order or authorization of, or a registration or filing with, any Official Body or any other Person is required by any Law or any agreement in connection
with the execution, delivery and carrying out of this Agreement and the other Loan Documents by any Loan Party, except as listed on  Schedule 5.1.12, all of which shall have been obtained or made on
or prior to the Closing Date except as otherwise indicated on  Schedule 5.1.12.


        5.1.13.    No Event of Default; Compliance With Instruments.    



        No
event has occurred and is continuing and no condition exists or will exist after giving effect to the borrowings or other extensions of credit to be made on the Closing Date under or
pursuant to the Loan Documents which constitutes an Event of Default or Potential Default. None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of (i) any term of its
certificate of incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents or
(ii) any material agreement or instrument to which it is a party or by which it or any of its properties may be subject or bound where, in each of (i) and (ii) above, such
violation would cause or constitute a Material Adverse Change. 


        5.1.14.    Patents, Trademarks, Copyrights, Licenses, Etc.    


        Each
Loan Party and each Subsidiary of each Loan Party owns or possesses all the material patents, trademarks, service marks, trade names, copyrights, licenses, registrations,
franchises, permits and rights necessary to own and operate its properties and to carry on its business as presently conducted and planned to be conducted by such Loan Party or Subsidiary, without
known possible, alleged or actual conflict with the rights of others that would cause or constitute a Material Adverse Change. 


        5.1.15.    Insurance.    


        No
notice has been given or claim made and no grounds exist to cancel or avoid any of such policies or bonds of any Loan Party or any Subsidiary or to reduce the coverage provided
thereby. Such policies and bonds provide adequate coverage from reputable and financially sound insurers in amounts sufficient to insure the assets and risks of each Loan Party and each Subsidiary of
each Loan Party in accordance with prudent business practice in the industry of the Loan Parties and their Subsidiaries. 


        5.1.16.    Compliance With Laws.    


        The
Loan Parties and their Subsidiaries are in compliance in all material respects with all applicable Laws (other than Environmental Laws which are specifically addressed in
Section 5.1.21 [Environmental Matters]) in all jurisdictions in which any Loan Party or Subsidiary of any Loan Party is presently or anticipates doing business through
the Expiration Date except where the failure to do so would not constitute a Material Adverse Change. 


        5.1.17.    Material Contracts; Burdensome Restrictions.    


        All
material contracts relating to the business operations of each Loan Party and each Subsidiary of any Loan Party, including all employee benefit plans and Labor Contracts are valid,
binding and enforceable upon such Loan Party or Subsidiary and each of the other parties thereto in accordance with their respective terms, and there is no default thereunder, to the Loan Parties'
knowledge, with respect to parties other than such Loan Party or Subsidiary. Except as disclosed in the Borrower's public filings with the SEC relating to transactions with Thermo Electron, none of
the Loan Parties or their Subsidiaries is bound by any contractual obligation, or subject to any 



41





 





restriction in any organization document, or any requirement of Law which cause or constitute a Material Adverse Change. 


        5.1.18.    Investment Companies; Regulated Entities.    



        None
of the Loan Parties or any Subsidiaries of any Loan Party is an "investment company" registered or required to be registered under the Investment Company Act of 1940 or under the
"control" of an "investment company" as such terms are defined in the Investment Company Act of 1940 and does not anticipate becoming such an "investment company" or under such "control" at any time
prior to the Expiration Date. None of the Loan Parties or any Subsidiaries of any Loan Party is subject to any other Federal or state statute or regulation limiting its ability to incur Indebtedness
for borrowed money. 


        5.1.19.    Plans and Benefit Arrangements.    



          (i)  The
Borrower and each other member of the ERISA Group are in compliance in all material respects with any applicable provisions of ERISA with respect to all Benefit
Arrangements, Plans and Multiemployer Plans except where such failure, alone or in conjunction with any other failure, would not constitute a Material Adverse Change. To the knowledge of the Borrower,
there has been no Prohibited Transaction with respect to any Benefit Arrangement, Plan or Multiemployer Plan or Multiple Employer Plan, which could result in any material liability of the Borrower or
any other member of the ERISA Group. The Borrower and all other members of the ERISA Group have made any payments required to be made under any agreement relating to a Multiemployer Plan or a Multiple
Employer Plan or any Law pertaining thereto. With respect to each Plan and Multiemployer Plan, the Borrower and each other member of the ERISA Group (i) have fulfilled in all material respects
their obligations under the minimum funding standards of ERISA, (ii) have not incurred any material liability to the PBGC, and (iii) have not had asserted against them any material
penalty for failure to fulfill the minimum funding requirements of ERISA. All Plans, Benefit Arrangements and Multiemployer Plans have been administered in accordance in all material respects with
their terms and applicable Law. 


        (ii)  No
event requiring notice to the PBGC under Section 302(f)(4)(A) of ERISA has occurred or, to the knowledge of the Borrower, is reasonably expected to occur,
with respect to any Plan, and no amendment with respect to which security is required under Section 307 of ERISA has been made or, to the knowledge of the Borrower, is reasonably expected to
occur, to any Plan. 


        (iii)  Neither
the Borrower nor any other member of the ERISA Group has incurred or, to the knowledge of the Borrower, reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any other member of the ERISA Group has been notified by any Multiemployer Plan or Multiple Employer
Plan that such Multiemployer Plan or Multiple Employer Plan has been terminated within the meaning of Title IV of ERISA and, to the best knowledge of the Borrower, no Multiemployer Plan or Multiple
Employer Plan is reasonably expected to be reorganized or terminated, within the meaning of Title IV of ERISA. 




        5.1.20.    Employment Matters.    


        Each
of the Loan Parties and each of their Subsidiaries is in compliance in all material respects with the Labor Contracts and all applicable federal, state and local labor and
employment Laws including those related to equal employment opportunity and affirmative action, labor relations, minimum wage, overtime, child labor, medical insurance continuation, worker adjustment
and relocation notices, immigration controls and worker and unemployment compensation, where the failure to comply would constitute a Material Adverse Change. There are no outstanding grievances,
arbitration awards or appeals therefrom arising out of the Labor Contracts or current or threatened strikes, picketing, handbilling or other work stoppages or slowdowns at facilities of any of the
Loan Parties or any of their Subsidiaries which in any case would constitute a Material Adverse Change 



42







  




        5.1.21.    Environmental Matters.    



        None
of the Loan Parties or any Subsidiaries of any Loan Party has received any Environmental Complaint, including but not limited to those from any Official Body or private Person
alleging that such Loan Party or Subsidiary or any prior owner, operator or occupant of any of the Property is a potentially responsible party under the Comprehensive Environmental Response, Cleanup
and Liability Act, 42 U.S.C. § 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. or any analogous state or local Law that would cause or
constitute a Material Adverse Change, and none of the Loan Parties has any reason to believe that such an Environmental Complaint might be received that would cause or constitute a Material Adverse
Change. There are no pending or, to any Loan Party's knowledge, threatened Environmental Complaints relating to any Loan Party or Subsidiary of any Loan Party or, to any Loan Party's knowledge, any
prior owner, operator or occupant of any of the Properties pertaining to, or arising out of, any Contamination or violations of Environmental Laws or Required Environmental Permits in each case that
would cause or constitute a Material Adverse Change. 


        5.1.22.    Senior Debt Status.    


        The
Obligations of each Loan Party under this Agreement, the Guaranty Agreement, as applicable, and each of the other Loan Documents to which it is a party do rank and will rank at least  pari passu in
priority of payment with all other Indebtedness of such Loan Party except Indebtedness of such Loan Party to the extent secured by
Permitted Liens or Indebtedness permitted under Section 7.2.1. There is no Lien upon or with respect to any of the properties or income of any Loan Party or Subsidiary of any Loan Party which
secures indebtedness or other obligations of any Person except for Permitted Liens. 


        5.1.23.    Insolvency.    


        No
Loan Party has ceased to be solvent or is unable to pay its debts as they mature; 




        5.2    Continuation of Representations.    



        The
Loan Parties make the representations and warranties in this Section 5 on the date hereof and the Closing Date, and make such representations and warranties in all material
respects on each date thereafter on which a Loan is made or a Letter of Credit is issued as provided in and subject to Sections 6.1 [First Loans and Letters of Credit] and 6.2
[Each Additional Loan or Letter of Credit]. 


 
 

6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT



        The
obligation of each Bank to make Loans and of the Agent to issue Letters of Credit hereunder is subject to the performance by each of the Loan Parties of its Obligations to be
performed hereunder at or prior to the making of any such Loans or issuance of such Letters of Credit and to the satisfaction of the following further conditions: 


        6.1    First Loans and Letters of Credit.  


        On the Closing Date: 



        6.1.1.    Officer's Certificate.    



        The
representations and warranties of each of the Loan Parties contained in Section 5 and in each of the other Loan Documents shall be true and accurate on and as of the Closing
Date with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time,
which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and each of the Loan Parties shall have performed and complied with all
covenants and conditions hereof and thereof; no Event of Default or Potential Default shall have occurred and be continuing or shall exist; and there shall be delivered to the Agent for the benefit 



43





 


of each Bank a certificate of each of the Loan Parties, dated the Closing Date and signed by the Chief Executive Officer, President, Chief Financial Officer, Corporate Treasurer, Treasurer, Assistant
Treasurer, Clerk or Assistant Clerk of each of the Loan Parties, to each such effect. 


        6.1.2.    Secretary's Certificate.    



        There
shall be delivered to the Agent for the benefit of each Bank a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or Clerk of each of the Loan
Parties, certifying as appropriate as to, or that, as applicable: 



          (i)  all
action (including resolutions, actions by written consent or similar items) required to be taken by each Loan Party in connection with this Agreement and the other
Loan Documents has been taken; 


        (ii)  the
names of the officer or officers authorized to sign this Agreement and the other Loan Documents and the true signatures of such officer or officers and specifying
the Authorized Officers permitted to act on behalf of each Loan Party for purposes of this Agreement and the true signatures of such officers, on which the Agent and each Bank may conclusively rely; 


        (iii)  copies
of its organizational documents, including its certificate of incorporation, bylaws, memorandum and articles of association, certificate of limited partnership,
partnership agreement, certificate of formation, and limited liability company agreement as in effect on the Closing Date certified by the appropriate state official where such documents are filed in
a state office or other relevant governmental body or office in any jurisdiction outside the United States; 



        (iv)  certificates
as to the continued existence and good standing from the appropriate state officials from each Loan Party's state of organization, and certificates from
the appropriate state officials of the Commonwealth of Pennsylvania indicating that each Loan Party, as applicable, is qualified to do business in the Commonwealth of Pennsylvania, together with a
bring-down certificate by facsimile dated the Closing Date; and 


        (v)  as
soon as available, but in no event later than thirty (30) days from the Closing Date, certificates of qualification to do business from the appropriate state
officials in each state where each Loan Party is qualified to do business. 




        6.1.3.    Delivery of Loan Documents.    


        The
Guaranty Agreement, the Pledge Agreement (except for those Pledge Agreements referred to in Section 7.1.13 [Pledge Agreements after Closing Date] and
the other Loan Documents to be delivered on the Closing Date shall have been duly executed and delivered to the Agent for the benefit of the Banks, and the Borrower shall have delivered certificates
and powers executed in blank in respect of the Subsidiary Shares, LLC Interests and Partnership Interests subject to the Pledge Agreement and executed UCC-1 financing statements in respect
of the Pledge Agreement. 


        6.1.4.    Opinion of Counsel.    


        There
shall be delivered to the Agent for the benefit of each Bank a written opinion of Morgan Lewis & Bockius LLP, counsel for the Loan Parties and the Restricted Subsidiaries
(who may rely on the opinions of such other counsel as may be acceptable to the Agent), dated the Closing Date and in form and substance satisfactory to the Agent and its counsel as to such matters
incident to the transactions contemplated herein as the Agent may require. 


        6.1.5.    Legal Details.    



        All
legal details and proceedings in connection with the transactions contemplated by this Agreement and the other Loan Documents shall be in form and substance satisfactory to the 



44





 


Agent and counsel for the Agent, and the Agent shall have received all such other counterpart originals or certified or other copies of such documents and proceedings in connection with such
transactions, in form and substance satisfactory to the Agent and said counsel, as the Agent or said counsel may reasonably request. 



        6.1.6.    Payment of Fees.    


        The
Borrower shall have paid or caused to be paid to the Agent for itself and for the account of the Banks to the extent not previously paid the Commitment Fees, all other commitment and
other fees accrued through the Closing Date and the costs and expenses for which the Agent and the Banks are entitled to be reimbursed. 


        6.1.7.    Consents.    



        All
material consents required to effectuate the transactions contemplated hereby as set forth on Schedule 5.1.12 shall have been
obtained. 


        6.1.8.    Officer's Certificate Regarding MACs.    


        Since
December 31, 2001, no Material Adverse Change shall have occurred; prior to the Closing Date, there shall have been no material change in the management of any Loan Party or
Subsidiary of any Loan Party (other than changes in officers and directors made incident to the spin-off from Thermo Electron and the resignation of a director of the Borrower on or about
May 13, 2002); and there shall have been delivered to the Agent for the benefit of each Bank a certificate dated the Closing Date and signed by the Chief Executive Officer, President or Chief
Financial Officer of each Loan Party or such other duly authorized officer of each Loan Party acceptable to the Agent to each such effect. 


        6.1.9.    No Violation of Laws.    


        The
making of the Loans and the issuance of the Letters of Credit shall not contravene any Law applicable to any Loan Party or any of the Banks. 



        6.1.10.    No Actions or Proceedings.    


        No
action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or legislative body to enjoin,
restrain or prohibit, or to obtain damages in respect of, this Agreement, the other Loan Documents or the consummation of the transactions contemplated hereby or thereby or which, in the Agent's sole
discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or any of the other Loan Documents. 



        6.1.11.    Repayment of Indebtedness.    


        The
Borrower shall have (i) repaid in full all amounts outstanding under the short-term credit facility provided by ABN AMRO, (ii) repaid all principal and
interest owing to Thermo Electron (other than amounts owing to Thermo Electron which are permitted to remain outstanding after the Closing Date and described on  Schedule 7.2.1) and shall have
obtained from Thermo Electron such acknowledgments, releases, satisfactions and terminations as the Agent may
require and (iii) repaid and terminated any facilities for Indebtedness for borrowed money unless such Indebtedness is permitted to exist after the Closing Date pursuant to Section 7.2.1
[Indebtedness]. 




        6.2    Each Additional Loan or Letter of Credit.    


        At
the time of making any Loans or issuing any Letters of Credit other than Loans made or Letters of Credit issued on the Closing Date and after giving effect to the proposed extensions
of credit: the representations and warranties of the Loan Parties contained in Section 5 and in the other Loan Documents shall be true on and as of the date of such additional Loan or Letter of
Credit in all material respects with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which expressly relate
solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific 


45





 


dates or times referred to therein) and the Loan Parties shall have performed and complied in all material respects with all covenants and conditions hereof; after giving effect to such Loan or such
issuance, the Borrower would not be in violation of Section 7.2.13 [Maximum Leverage Ratio]; no Event of Default or Potential Default shall have occurred and be
continuing or shall exist; the making of the Loans or issuance of such Letter of Credit shall not contravene in any material way any Law applicable to any Loan Party or Subsidiary of any Loan Party or
any of the Banks; and the Borrower shall have
delivered to the Agent a duly executed and completed Loan Request or application for a Letter of Credit as the case may be. 


 
 

7. COVENANTS


        7.1    Affirmative Covenants.    



        The
Loan Parties, jointly and severally, covenant and agree that until payment in full of the Loans, Reimbursement Obligations and Letter of Credit Borrowings, and interest thereon,
expiration or termination of all Letters of Credit, satisfaction of all of the Loan Parties' other Obligations under the Loan Documents and termination of the Commitments, the Loan Parties shall
comply at all times with the following affirmative covenants: 



        7.1.1.    Preservation of Existence, Etc.    



        Each
Loan Party shall, and shall cause each of its Subsidiaries to, maintain its legal existence as a corporation, limited partnership or limited liability company and its license or
qualification and good standing in each jurisdiction in which its ownership or lease of property or the nature of its business makes such license or qualification necessary, except as otherwise
expressly permitted in Section 7.2.5 [Liquidations, Mergers, Etc.] except where the failure so to qualify would not cause or constitute a Material Adverse Change. 


        7.1.2.    Payment of Liabilities, Including Taxes, Etc.    



        Each
Loan Party shall, and shall cause each of its Subsidiaries to, duly pay and discharge all material liabilities to which it is subject or which are asserted against it, promptly as
and when the same shall become due and payable, including without limitation, all liabilities and obligations to Thermo Electron and all taxes, assessments and governmental charges upon it or any of
its properties, assets, income or profits, prior to the date on which penalties attach thereto, except to the extent that such liabilities, including taxes, assessments or charges, are being contested
in good faith and by appropriate and lawful proceedings diligently conducted and for which such reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made, but
only to the extent that failure to discharge any such liabilities would not result in any additional liability which would adversely affect to a material extent the financial condition of any Loan
Party or Subsidiary of any Loan Party, provided that the Loan Parties and their Subsidiaries will pay all such liabilities forthwith upon the commencement of proceedings to foreclose any Lien which
may have attached as security therefor. 


        7.1.3.    Maintenance of Insurance.    


        Each
Loan Party shall, and shall cause each of its Subsidiaries to, insure its properties and assets against loss or damage by fire and such other insurable hazards as such assets are
commonly insured (including fire, extended coverage, property damage, workers' compensation, public liability and business interruption insurance) and against other risks (including errors and
omissions) and against products liability in such amounts as similar properties and assets are insured by prudent companies in similar circumstances carrying on similar businesses, and with reputable
and financially sound insurers, including self-insurance to the extent customary, all as reasonably determined by the Agent. 



46





 

        7.1.4.    Maintenance of Properties and Leases.    


        Each
Loan Party shall, and shall cause each of its Subsidiaries to, maintain in good repair, working order and condition (ordinary wear and tear excepted) in accordance with the general
practice of other businesses of similar character and size, all of those properties useful or necessary to its business, and from time to time, such Loan Party will make or cause to be made all
appropriate repairs, renewals or replacements thereof. 


        7.1.5.    Maintenance of Patents, Trademarks, Etc.    


        Each
Loan Party shall, and shall cause each of its Subsidiaries to, maintain in full force and effect all patents, trademarks, service marks, trade names, copyrights, licenses,
franchises, permits and other authorizations necessary for the ownership and operation of its properties and business if the failure so to maintain the same would constitute a Material Adverse Change. 


        7.1.6.    Visitation Rights.    



        Each
Loan Party shall, and shall cause each of its Subsidiaries to, permit any of the officers or authorized employees or representatives of the Agent or any of the Banks to visit and
inspect any of its properties and to examine and make excerpts from its books and records and discuss its business affairs, finances and accounts with its officers, all in such detail and at such
times and as often as any of the Banks may reasonably request, provided that each Bank shall provide the Borrower with reasonable notice prior to any
visit or inspection. In the event any Bank desires to conduct an audit of any Loan Party, such Bank shall make a reasonable effort to conduct such audit contemporaneously with any audit to be
performed by the Agent. 


        7.1.7.    Keeping of Records and Books of Account.    


        The
Borrower shall, and shall cause each Subsidiary of the Borrower to, maintain and keep proper books of record and account which enable the Borrower and its Subsidiaries to issue
financial statements in accordance with GAAP and as otherwise required by applicable Laws of any Official Body having jurisdiction over the Borrower or any Subsidiary of the Borrower, and in which
full, true and correct entries shall be made in all material respects of all its dealings and business and financial affairs. 



        7.1.8.    Plans and Benefit Arrangements.    


        The
Borrower shall, and shall cause each other member of the ERISA Group to, comply with ERISA, the Internal Revenue Code and other applicable Laws applicable to Plans and Benefit
Arrangements except where such failure, alone or in conjunction with any other failure, would not result in a Material Adverse Change. Without limiting the generality of the foregoing, the Borrower
shall cause all of its Plans and all Plans maintained by any member of the ERISA Group to be funded in accordance with the minimum funding requirements of ERISA and shall make, and cause each member
of the ERISA Group to make, in a timely manner, all contributions due to Plans, Benefit Arrangements and Multiemployer Plans, except where such failure, alone or in conjunction with any other failure,
would not result in a Material Adverse Change. 


        7.1.9.    Compliance With Laws.    


        Each
Loan Party shall, and shall cause each of its Subsidiaries to, comply with all applicable Laws, including all Environmental Laws, in all respects, provided
that it shall not be deemed to be a violation of this Section 7.1.9 if any failure to comply with any Law would not result in fines, penalties, remediation costs, other
similar liabilities or injunctive relief which in the aggregate would constitute a Material Adverse Change. 


        7.1.10.    Use of Proceeds.    


        The
Loan Parties will use the Letters of Credit and the proceeds of the Loans only for the purposes described in Section 2.8 [Use of Proceeds] The Loan
Parties shall not use the Letters of Credit or the proceeds of the Loans for any purposes which contravenes any applicable Law or any provision hereof. 



47





 

        7.1.11.    Guarantors and Pledged Interests.    


        On
and after the Closing Date, the Borrower and the other Loan Parties shall at all times cause (A) all Domestic Subsidiaries to become Guarantors, (B) 65% of the
Subsidiary Shares, LLC Interests or Partnership Interests and other ownership interests of each Foreign Subsidiary that is a Subsidiary of the Borrower or a Domestic Subsidiary and is not a Subsidiary
of a Foreign Subsidiary, and (C) 100% of the Subsidiary Shares, LLC Interests and Partnership Interests and other ownership interests of each Domestic Subsidiary which are not Subsidiaries of a
Foreign Subsidiary, in the cases of both (B) and (C), to become subject to a perfected first-priority Lien in favor of the Agent under a Pledge Agreement, each pursuant to Section 10.18
[Joinder of Guarantors or Pledge under Pledge Agreement]. Notwithstanding the foregoing, if a Foreign Subsidiary owns the shares or interests of a Foreign Subsidiary as
described above, but such owned Foreign Subsidiary ceases to be a Designated Foreign Subsidiary through a re-designation pursuant to and in accordance with Section 2.14
[Re-Designation of Designated Foreign Subsidiary], then said Foreign Subsidiary must be subject to a Pledge Agreement. Subsidiaries of the Borrower which are
required to be Guarantors hereunder shall include all direct and indirect Subsidiaries formed under the laws of the United States of America or any state or territory thereof and the District of
Columbia which are not Subsidiaries of Foreign Subsidiaries. For the avoidance of doubt, it is agreed that no Foreign Subsidiary shall at any time be obliged to be joined as a Guarantor or, directly
or indirectly, to provide "financial assistance" for the purpose of reducing or discharging any liability incurred in connection with the acquisition of shares in such Foreign Subsidiary or any
Subsidiary or holding company of such Foreign Subsidiary (whether by the provision of any guarantee, indemnity, security over its assets or otherwise) in circumstances where the provision of such
assistance by such Foreign Subsidiary is prohibited under the relevant jurisdiction, which shall include, without limitation, in circumstances contrary to the provisions of sections 151 to 158 of the
Companies Act 1985 (as amended) of England and Wales with respect to any Foreign Subsidiary incorporated in England and Wales. 


        7.1.12.    Senior Status of Obligations.    


        Each
of the Loan Parties shall cause the Obligations to rank at least pari passu in priority of payment with all other Indebtedness of
such Loan Party except Indebtedness of such Loan Party to the extent secured by Permitted Liens or Indebtedness permitted under Section 7.2.1. 



        7.1.13.    Pledge Agreements after Closing Date.    


        On
or before June 30, 2002, the Borrower shall deliver originals of the following items (with copies delivered contemporaneously to each of the Banks) in respect of the pledge of
ownership interests of the Restricted Subsidiaries which are Foreign Subsidiaries: 



          (i)  executed
Pledge Agreements for 65% of all of such interests, such Pledge Agreements to be conformed to the laws of the appropriate jurisdiction and accompanied by an
English translation if the original document is not in English; 


        (ii)  certificates
evidencing such ownership interests, if they are certificated; 


        (iii)  such
filings, recordings, lodgings or similar items, documents or certificates necessary to evidence or effect the perfection under applicable law of the Agent's
first-lien security interest in such ownership interests; 


        (iv)  such
other items reasonably requested by the Agent to implement the intent of this Agreement with respect to the pledge of the ownership interests of the Restricted
Subsidiaries which are Foreign Subsidiaries; and 


        (v)  the
opinions of Morgan Lewis & Bockius LLP (which may rely reasonably on the opinions of non-U.S. attorneys) and local foreign counsel
acceptable to the Agent as to enforceability and perfection in form and substance satisfactory to the Agent; provided that no Event of Default shall be deemed to occur under this Section 7.1.13
unless and until the Agent delivers notice to the Borrower of a default under this Section 7.1.13. 




48











   
        7.2    Negative Covenants.    


        The
Loan Parties, jointly and severally, covenant and agree that until payment in full of the Loans, Reimbursement Obligations and Letter of Credit Borrowings and interest thereon,
expiration or termination of all Letters of Credit, satisfaction of all of the Loan Parties' other Obligations hereunder and termination of the Commitments, the Loan Parties shall comply with the
following negative covenants: 



        7.2.1.    Indebtedness.    


        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness, except: 



          (i)  Indebtedness
under the Loan Documents; 


        (ii)  Existing
Indebtedness as set forth on Schedule 7.2.1 (including any extensions or renewals thereof),  provided there is no increase in the amount thereof or
other significant change in the terms thereof unless otherwise specified on  Schedule 7.2.1; 


        (iii)  Capitalized
leases as and to the extent permitted under Section 7.2.12 [Capital Expenditures] and operating leases; 



        (iv)  Indebtedness
secured by Purchase Money Security Interests not exceeding $3,000,000; 


        (v)  Indebtedness
of a Restricted Subsidiary to another Restricted Subsidiary; 


        (vi)  Any
Interest Rate Hedge or Currency Hedge provided by a Bank or if approved by the Agent, any other Interest Rate Hedge; and 


      (vii)  Other
Indebtedness in an amount not to exceed 5% of the consolidated assets of the Borrower and the Restricted Subsidiaries, calculated in accordance with GAAP; 



      (viii)  Other
Indebtedness to the extent permitted under Section 7.2.7 [Affiliate Transactions; Restricted Payments]; and 


        (ix)  Guaranties
of Indebtedness of the Loan Parties to the extent permitted under Section 7.2.3 [Guaranties]. 




        7.2.2.    Liens.    


        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Lien on any of its property or assets,
tangible or intangible, now owned or hereafter acquired, or agree or become liable to do so, except Permitted Liens. 


        7.2.3.    Guaranties.    


        Except
as described on Schedule 7.2.3, each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any
time, directly or indirectly, become or be liable in respect of any Guaranty, or assume, guarantee, become surety for, endorse or otherwise agree, become or remain directly or contingently liable upon
or with respect to any obligation or liability of any other Person, except for Guaranties of Indebtedness of the Loan Parties or otherwise as permitted under Section 7.2.7
[Affiliate Transactions; Restricted Payments]. 


        7.2.4.    Loans and Investments.    


        Except
for transactions permitted under Section 7.2.5, each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time make or suffer to remain
outstanding any loan or advance to, or purchase, acquire or own any stock, bonds, notes or securities of, or any partnership interest (whether general or limited) or limited liability company interest
in, or any 



49





 





other investment or interest in, or make any capital contribution to, any other Person, or agree, become or remain liable to do any of the foregoing, except: 



          (i)  trade
credit extended on usual and customary terms in the ordinary course of business; 


        (ii)  advances
to employees to meet expenses incurred by such employees in the ordinary course of business or as otherwise described on  Schedule 7.2.4(ii); 


        (iii)  Permitted
Investments; 


        (iv)  loans,
advances and investments in Restricted Subsidiaries; 


        (v)  Loans
or advances by the Borrower to a Restricted Subsidiary; 


        (vi)  Other
Loans to the extent permitted by Section 7.2.7 [Affiliate Transactions; Restricted Payments]; 


      (vii)  any
Indebtedness described on Schedule 7.2.1; and 


      (viii)  Guaranties
of Indebtedness of the Loan Parties to the extent permitted under Section 7.2.3 [Guaranties]. 




        7.2.5.    Liquidations, Mergers, Consolidations, Acquisitions.    



        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or
consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that


        (1)  any
Subsidiary of the Borrower may consolidate or merge into another such Subsidiary and Nicolet Vascular Inc., Grason-Stadler, Inc. and Bird Life Design
Corporation shall be permitted to merge with or consolidate with the Borrower, and 


        (2)  the
Borrower or any Subsidiary of the Borrower may acquire, whether by purchase or by merger, (A) all of the ownership interests of another Person or
(B) substantially all of assets of another Person or of a business or division of another Person (each a "Permitted Acquisition"), provided that  each of the following requirements is met:




          (i)  if
the Borrower or such Subsidiary is acquiring the ownership interests in such Person, such Person (A) if a Domestic Subsidiary which is not a Subsidiary of a
Foreign Subsidiary, shall execute a Guarantor Joinder and join this Agreement as a Guarantor pursuant to Section 10.18 [Joinder of Guarantors or Pledge Under Pledge
Agreement], or (B) if a Foreign Subsidiary which is not a Subsidiary of a Foreign Subsidiary, the Subsidiary Shares, LLC Interests or Partnership Interests and other ownership
interests such Person, which would be required to be pledged under Section 7.1.11 [Guarantees and Pledged Interests] under the Pledge Agreement shall become subject to a
pledge under Pledge Agreement on or before the date of such Permitted Acquisition but only as required by Section 7.1.11 [Guarantors and Pledged Interests]; 


        (ii)  the
Borrower, such Subsidiary, such Person and its owners, as applicable, shall comply with Section 10.18 [Joinder of Guarantors or Pledge under the
Pledge Agreement], if applicable, on, or within ten (10) Business Days after, the date of such Permitted Acquisition; 


        (iii)  the
board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and, if the Loan Parties shall use any portion
of the Loans to fund such Permitted Acquisition, the Loan Parties also shall have delivered to the 




50





 






Banks written evidence of the approval of the board of directors (or equivalent body) of such Person for such Permitted Acquisition; 


        (iv)  the
business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as one or
more line or lines of business conducted by the Borrower or its Restricted Subsidiaries (unless otherwise approved by Required Banks) and shall comply with Section 7.2.9
[Continuation of or Change in Business]; 


        (v)  no
Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition; and 


        (vi)  the
Borrower shall demonstrate that it shall be in compliance with the covenants contained in Sections 7.2.12, 7.2.13, 7.2.14 and 7.2.15 after giving effect to
such Permitted Acquisition (including the EBITDA of such Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days
prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.5 evidencing such compliance. 




        7.2.6.    Dispositions of Assets or Subsidiaries.    


        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or
involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general
intangibles with or without recourse or of capital stock, shares of beneficial interest, partnership interests or limited liability company interests of a Subsidiary of such Loan Party), except
pursuant to: 



          (i)  transactions
involving the sale of inventory in the ordinary course of business; 


        (ii)  any
sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of such Loan Party's or such
Subsidiary's business; 


        (iii)  any
sale, transfer or lease of assets by any Subsidiary to another Loan Party or a Restricted Subsidiary; 



        (iv)  any
sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased within the parameters of
Section 7.2.12 [Capital Expenditures]; 


        (v)  any
sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (iv) above, which is approved by the Required Banks;
or 


        (vi)  any
sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (v) above, provided that  (i) at the time of any disposition, no Event of Default shall
exist or shall result from such disposition, and (ii) the aggregate value of all assets so sold by
the Loan Parties and their Subsidiaries shall not exceed in any fiscal year 5% of the consolidated assets of the Loan Parties and their Subsidiaries. 




        7.2.7.    Affiliate Transactions; Restricted Payments.    


        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, enter into or carry out any material transaction with an Affiliate of such Person (including
purchasing property or services from or selling property or services to any Affiliate of any Loan Party or other Person) unless such
transaction is not otherwise prohibited by this Agreement, is entered into in the ordinary course of business upon fair and reasonable arm's-length terms and conditions or is disclosed in the
Borrower's financial statements delivered pursuant to Section 7.3 and is in 



51





 





accordance with all applicable Law. The Loan Parties shall not pay to any Person any Dividends to, and no Loan Party shall make any payments of money to, or incur or guarantee any Indebtedness for
the benefit of, any Subsidiary or Affiliate of a Loan Party except (i) to or on behalf of a Restricted Subsidiary (ii) to or on behalf of other Subsidiaries (whether described in
Sections 7.2.1, 7.2.3, 7.2.4 or otherwise) in an aggregate amount not in excess of $10,000,000 while any Loans are outstanding or Commitments in effect; and (iii) dividends paid by any
Subsidiary to the Borrower. 


        7.2.8.    Subsidiaries, Partnerships and Joint Ventures.    


        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, own or create directly or indirectly any Subsidiaries other than (i) any Subsidiary which has
joined this Agreement as Guarantor on the Closing Date; and (ii) any Subsidiary formed after the Closing Date which joins this Agreement as a Guarantor as and to the extent required by
Section 7.1.11 or becomes subject to the Pledge Agreement pursuant to Section 10.18 [Joinder of Guarantors or Pledge under Pledge Agreement] as and to the extent
required by Section 7.1.11, subject to the restrictions set forth in this Section 7.2.8, it being understood that 65% of the issued Partnership Interests, LLC Interests and
Subsidiary Shares of each Foreign Subsidiary (other than a Designated Foreign Subsidiary or a Foreign Subsidiary which is a Subsidiary of a Foreign Subsidiary) and 100% of the issued Partnership
Interests, LLC Interests and Subsidiary Shares of each Domestic Subsidiary (which is not a Subsidiary of a Foreign Subsidiary) shall at all times be subject to a first-lien security
interest under the Pledge Agreement subject to the restrictions set forth in this Section 7.2.8. Each of the Restricted Subsidiaries shall not become or agree to (1) become a general or
limited partner in any general or limited partnership, except that the Loan Parties may be general or limited partners in other Loan Parties, (2) become a member or manager of, or hold a
limited liability company interest in, a limited liability company, except that the Loan Parties may be members or managers of, or hold limited liability company interests in, other Loan Parties, or
(3) become a joint venturer or hold a joint venture interest in any joint venture. 


        7.2.9.    Continuation of or Change in Business.    


        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, engage in any business other than the development, manufacture, marketing and servicing of a variety
of medical devices, instruments and medical and surgical products for use in the respiratory, neurocare and medical and surgical product markets substantially as conducted and operated by such Loan
Party or Subsidiary during the present fiscal year or as now planned, and such Loan Party or Subsidiary shall not permit any material change in such business. 


        7.2.10.    Plans and Benefit Arrangements.    


        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, engage in a Prohibited Transaction with any Plan, Benefit Arrangement or Multiemployer Plan which,
alone or in conjunction with any other circumstances or set of circumstances, would (a) result in liability under ERISA or otherwise violate ERISA, and (b) cause or constitute a Material
Adverse Change. 


        7.2.11.    Fiscal Year.    


        The
Borrower shall not, and shall not permit any Subsidiary of the Borrower to, change its fiscal year from the twelve-month period ending on the Saturday closest to December 31
of each year. 


        7.2.12.    Capital Expenditures.    



        Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make any payments exceeding $20,000,000 in the aggregate for all Loan Parties and their Subsidiaries
in any 



52





 





fiscal year on account of the purchase or lease of any assets which if purchased would constitute fixed assets or which if leased would constitute a capitalized lease, and all such capital
expenditures and leases shall be made under usual and customary terms and in the ordinary course of business. To the extent actual capital expenditures in any fiscal year are less than such limit, the
excess (up to $5,000,000) may be carried forward to the next fiscal year so as to increase the limit hereunder by such amount. 


        7.2.13.    Maximum Leverage Ratio.    


        The
Loan Parties shall not at any time permit the Leverage Ratio to exceed 2.50-to-1.0. 


        7.2.14.    Minimum Interest Coverage Ratio.    



        The
Loan Parties shall not permit the ratio of (x) EBITDA to (y) Interest Expense, calculated as of the end of each fiscal quarter for the four (4) fiscal quarters
then ended, to be less than 4.0-to-1.0. 


        7.2.15.    Minimum Stockholders' Equity.    


        The
Borrower shall not at any time permit Stockholders' Equity to be less than (i) $270,000,000, plus (ii) 50% of net income
(calculated and consolidated in accordance with GAAP) (if positive) for each such fiscal quarter, plus (or  minus) (iii) the decrease (or increase) in
Stockholders' Equity on account of Cumulative Foreign Currency Translation Adjustments for each such
period, plus (iv) 100% of the proceeds (net of sales commissions and direct costs of sale) from the sale of any capital stock of the Borrower or
its Subsidiaries during each such period, calculated in accordance with GAAP. 




        7.3    Reporting Requirements.    


        The
Loan Parties, jointly and severally, covenant and agree that until payment in full of the Loans, Reimbursement Obligations and Letter of Credit Borrowings and interest thereon,
expiration or termination of all Letters of Credit, satisfaction of all of the Loan Parties' other Obligations hereunder and under the other Loan Documents and termination of the Commitments, the Loan
Parties will furnish or cause to be furnished to the Agent and each of the Banks: 



        7.3.1.    Quarterly Financial Statements.    


        As
soon as available and in any event within forty-five (45) calendar days after the end of each of the first three fiscal quarters in each fiscal year, financial
statements of the Borrower, consisting of a consolidated balance sheet and statements of income as of the end of such fiscal quarter and related consolidated statements of stockholders' equity and
cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject only to the absence of footnotes and normal year-end
audit adjustments) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, consistently applied, and setting forth in
comparative form the respective financial statements for the corresponding date and period in the previous fiscal year. The Loan Parties will be deemed to have complied with the delivery requirements
of this Section 7.3.1 if within forty-five (45) days after the end of its fiscal quarter, the Borrower delivers to the Agent and each of the Banks a copy of its
Form 10-Q as filed with the SEC and the financial statements contained therein meets the requirements described in this Section. 



        7.3.2.    Annual Financial Statements.    


        As
soon as available and in any event within ninety (90) days after the end of each fiscal year of the Borrower, financial statements of the Borrower consisting of
(A) consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of income, stockholders' equity and cash flows, setting forth in comparative form the
foregoing financial statements as of 



53





 





the end of and for the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing satisfactory to the Agent, and (B) consolidating
statements of income and balance sheets for the fiscal year then ended, all in reasonable detail. The certificate or report of accountants shall be free of qualifications (other than any consistency
qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) and shall not indicate the occurrence or existence of any event,
condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan Party under any of the Loan Documents. The Loan Parties
will be deemed to have complied with the delivery requirements of this Section 7.3.2 if (i) within ninety (90) days after the end of its fiscal year, the Borrower delivers to the
Agent and each of the Banks a copy of its report on Form 10-K as filed with the SEC and the financial statements and certification of public accountants contained therein meets the
requirements described in this Section and (ii) within one hundred five (105) days after its fiscal year, the Borrower delivers to the Agent and each of the Banks a copy of its annual
report. 


        7.3.3.    Certificate of the Borrower.    



        Concurrently
with the financial statements of the Borrower furnished to the Agent and to the Banks pursuant to Sections 7.3.1 [Quarterly Financial
Statements] and 7.3.2 [Annual Financial Statements], a certificate (each a "Compliance Certificate") of the Borrower signed by the Chief Executive Officer,
President or Chief Financial Officer of the Borrower, in the form of Exhibit 7.3.3, to the effect that, except as described pursuant to
Section 7.3.4 [Notice of Default], (i) the representations and warranties of the Borrower contained in Section 6 and in the other Loan Documents are true
in all material respects on and as of the date of such certificate with the same effect as though such representations and warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time) and the Loan Parties have performed and complied with all covenants and conditions hereof, (ii) no Event of Default or
Potential Default exists and is continuing on the date of such certificate and (iii) containing calculations in sufficient detail to demonstrate compliance as of the date of such financial
statements with all financial covenants contained in Section 7.2 [Negative Covenants]. 


        7.3.4.    Notice of Default.    


        Promptly
after any officer of any Loan Party has learned of the occurrence of an Event of Default or Potential Default, a certificate signed by the Chief Executive Officer, President or
Chief Financial Officer of such Loan Party setting forth the details of such Event of Default or Potential Default and the action which the such Loan Party proposes to take with respect thereto. 


        7.3.5.    Notice of Litigation.    


        Promptly
after the commencement thereof, notice of all actions, suits, proceedings or investigations before or by any Official Body or any other Person against any Loan Party or
Subsidiary of any Loan Party, involve a claim or series of claims in excess of $5,000,000 or which if adversely determined would constitute a Material Adverse Change. 



        7.3.6.    Sale of Assets.    


        At
least ten (10) Business Days prior thereto, with respect to any proposed sale or transfer of assets pursuant to Section 7.2.6(iv) or
(v) [Disposition of Assets or Subsidiaries], 


        7.3.7.    Budgets, Forecasts, Other Reports and Information.    


        Promptly
upon (but in no event more than 10 Business Days after) their becoming available to the Borrower or on the date specified below: 



          (i)  any
reports, notices or proxy statements generally distributed by the Borrower to its stockholders on a date no later than the date supplied to such stockholders, 




54











  





        (ii)  regular
or periodic reports, including Forms 10-K, 10-Q and 8-K, registration statements and prospectuses, filed by the Borrower
with the SEC, 


        (iii)  copies
of the Borrower's accountants' management letters as delivered to the Borrower from time to time, 



        (iv)  on
or before January 31 each year, annual updated projections in the final form approved by the Borrower's board of directors, 


        (v)  at
any time when such Schedule ceases to be complete and accurate, a revised Schedule 5.1.2; and 


        (vi)  such
other reports and information as any of the Banks may from time to time reasonably request on the date reasonably requested thereby. 





The
Borrower shall also notify the Banks promptly of the enactment or adoption of any Law of which the Borrower has knowledge which may result in a Material Adverse Change. 



        7.3.8.    Notices Regarding Plans and Benefit Arrangements.    



        7.3.8.1    Certain Events.    


        Promptly
upon becoming aware of the occurrence thereof, notice (including the nature of the event and, when known, any action taken or threatened by the Internal Revenue Service or the
PBGC with respect thereto) of: 



          (i)  any
Reportable Event with respect to the Borrower or any other member of the ERISA Group (regardless of whether the obligation to report said Reportable Event to the
PBGC has been waived), 


        (ii)  any
Prohibited Transaction which could subject the Borrower or any other member of the ERISA Group to a civil penalty assessed pursuant to
Section 502(i) of ERISA or a tax imposed by Section 4975 of the Internal Revenue Code in connection with any Plan, any Benefit Arrangement or any trust created thereunder, 


        (iii)  any
assertion of material withdrawal liability with respect to any Multiemployer Plan, 



        (iv)  any
partial or complete withdrawal from a Multiemployer Plan by the Borrower or any other member of the ERISA Group under Title IV of ERISA (or assertion thereof),
where such withdrawal is likely to result in material withdrawal liability, 


        (v)  any
cessation of operations (by the Borrower or any other member of the ERISA Group) at a facility in the circumstances described in Section 4062(e) of ERISA, 


        (vi)  withdrawal
by the Borrower or any other member of the ERISA Group from a Multiple Employer Plan, 


      (vii)  a
failure by the Borrower or any other member of the ERISA Group to make a payment to a Plan required to avoid imposition of a Lien under Section 302(f) of
ERISA, 


      (viii)  the
adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA, or 


        (ix)  any
change in the actuarial assumptions or funding methods used for any Plan, where the effect of such change is to materially increase or materially reduce the
unfunded benefit liability or obligation to make periodic contributions. 





55





 







        7.3.8.2    Notices of Involuntary Termination and Annual Reports.    



        Promptly
after receipt thereof, copies of (a) all notices received by the Borrower or any other member of the ERISA Group of the PBGC's intent to terminate any Plan administered
or maintained by the Borrower or any member of the ERISA Group, or to have a trustee appointed to administer any such Plan; and (b) at the request of the Agent or any Bank each annual report
(IRS Form 5500 series) and all accompanying schedules, the most recent actuarial reports, the most recent financial information concerning the financial status of each Plan administered or
maintained by the Borrower or any other member of the ERISA Group, and schedules showing the amounts contributed to each such Plan by or on behalf of the Borrower or any other member of the ERISA
Group in which any of their personnel participate or from which such personnel may derive a benefit, and each Schedule B (Actuarial Information) to the annual report filed by the Borrower or
any other member of the ERISA Group with the Internal Revenue Service with respect to each such Plan. 


        7.3.8.3    Notice of Voluntary Termination.    


        Promptly
upon the filing thereof, copies of any Form 5310, or any successor or equivalent form to Form 5310, filed with the PBGC in connection with the termination of any
Plan. 




 
 

8. DEFAULT    
  


        8.1    Events of Default.    


        An
Event of Default shall mean the occurrence or existence of any one or more of the following events or conditions (whatever the reason therefor and whether voluntary, involuntary or
effected by operation of Law): 



        8.1.1.    Payments Under Loan Documents.    


        The
Borrower shall fail to pay (i) any principal of any Loan (including scheduled installments, mandatory prepayments or the payment due at maturity), Reimbursement Obligation or
Letter of Credit Borrowing when such principal is due hereunder or (ii) any interest on any Loan, Reimbursement Obligation or Letter of Credit Borrowing, fee, or any other amount owing
hereunder or under the other Loan Documents within two (2) Business Days after when such interest or other amount becomes due in accordance with the terms hereof or thereof; 



        8.1.2.    Breach of Warranty.    


        Any
representation or warranty made or deemed made at any time by any of the Loan Parties herein or by any of the Loan Parties in any other Loan Document, or in any certificate, other
instrument or statement furnished pursuant to the provisions hereof or thereof, shall prove to have been false or misleading in any material respect as of the time it was made or deemed made, or
furnished; 


        8.1.3.    Breach of Negative Covenants or Visitation Rights.    



        Any
of the Loan Parties shall default in the observance or performance of any covenant contained in Section 7.1.1 [Preservation of Existence, Etc.],
Section 7.1.6 [Visitation Rights] or Section 7.2 [Negative Covenants]; 


        8.1.4.    Breach of Other Covenants.    


        Any
of the Loan Parties shall default in the observance or performance of any other covenant, condition or provision hereof or of any other Loan Document and such default shall continue
unremedied for a period of ten (10) Business Days after any officer of any Loan Party becomes aware of the occurrence thereof (such grace period to be applicable only in the event such default 



56





 





can be remedied by corrective action of the Loan Parties as determined by the Agent in its sole discretion); 


        8.1.5.    Defaults in Other Agreements or Indebtedness.    



        A
default or event of default shall occur at any time under the terms of any other agreement involving borrowed money or the extension of credit or any other Indebtedness under which any
Loan Party or Subsidiary of any Loan Party may be obligated as a borrower or guarantor in excess of $5,000,000 in the aggregate, and such breach, default or event of default consists of the failure to
pay (beyond any period of grace permitted with respect thereto, whether waived or not) any indebtedness when due (whether at stated maturity, by acceleration or otherwise) or if such breach or default
permits or causes the acceleration of any indebtedness (whether or not such right shall have been waived) or the termination of any commitment to lend; 



        8.1.6.    Final Judgments or Orders.    


        Any
final judgments or orders for the payment of money in excess of $5,000,000 in the aggregate shall be entered against any Loan Party by a court having jurisdiction in the premises,
which judgment is not discharged, vacated, bonded or stayed pending appeal within a period of thirty (30) days from the date of entry; 


        8.1.7.    Loan Document Unenforceable.    



        Any
of the Loan Documents shall cease to be legal, valid and binding agreements enforceable against the party executing the same or such party's successors and assigns (as permitted
under the Loan Documents) in accordance with the respective terms thereof or shall in any way be terminated (except in accordance with its terms) or become or be declared ineffective or inoperative or
shall in any way be challenged or contested or cease to give or provide the respective Liens, security interests, rights, titles, interests, remedies, powers or privileges intended to be created
thereby; 


        8.1.8.    Uninsured Losses; Proceedings Against Assets.    



        Any
of the Loan Parties' or any of their Subsidiaries' assets having a value in excess of $2,000,000 are attached, seized, levied upon or subjected to a writ or distress warrant; or such
come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and the same is not cured within thirty (30) days thereafter; 


        8.1.9.    Notice of Lien or Assessment.    


        A
notice of Lien or assessment in excess of $5,000,000 which is not a Permitted Lien is filed of record with respect to all or any part of any of the Loan Parties' or any of their
Subsidiaries' assets by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipal or other governmental agency, including the PBGC, or any taxes or
debts owing at any time or times hereafter to any one of these becomes payable and the same is not paid within thirty (30) days after the same becomes payable; 


        8.1.10.    Insolvency.    


        Any
Loan Party or any Subsidiary of a Loan Party ceases to be solvent or admits in writing its inability to pay its debts as they mature; 



        8.1.11.    Material Adverse Change.    


        There
shall have occurred a Material Adverse Change in the financial condition or operations of the Borrower. 



57





 




        8.1.12.    Events Relating to Plans and Benefit Arrangements.    



        Any
of the following occurs: (i) any Reportable Event, which the Agent determines in good faith constitutes grounds for the termination of any Plan by the PBGC or the appointment
of a trustee to administer or liquidate any Plan, shall have occurred and be continuing; (ii) proceedings shall have been instituted or other action taken to terminate any Plan, or a
termination notice shall have been filed with respect to any Plan; (iii) a trustee shall be appointed to administer or liquidate any Plan; (iv) the PBGC shall give notice of its intent
to institute proceedings to terminate any Plan or Plans or to appoint a trustee to administer or liquidate any Plan; and, in the case of the occurrence of (i), (ii), (iii) or (iv) above,
the Agent determines in good faith that the amount of the Borrower's liability is likely to exceed 10% of its consolidated tangible net worth (defined in accordance with GAAP); (v) the Borrower
or any member of the ERISA Group shall fail to make any contributions when due to a Plan or a Multiemployer Plan; (vi) the Borrower or any other member of the ERISA Group shall make any
amendment to a Plan with respect to which security is required under Section 307 of ERISA; (vii) the Borrower or any other member of the ERISA Group shall withdraw completely or
partially from a Multiemployer Plan; (viii) the Borrower or any other member of the ERISA Group shall withdraw (or shall be deemed under Section 4062(e) of ERISA to withdraw) from a
Multiple Employer Plan; or (ix) any applicable Law is adopted, changed or interpreted by any Official Body with respect to or otherwise affecting one or more Plans, Multiemployer Plans or
Benefit Arrangements and, with respect to any of the events specified in (v), (vi), (vii), (viii) or (ix), the Agent determines in good faith that any such occurrence would be reasonably likely
to materially and adversely affect the total enterprise represented by the Borrower and the other members of the ERISA Group; 


        8.1.13.    Cessation of Business.    


        Any
Loan Party or Subsidiary of a Loan Party ceases to conduct its business as contemplated, except as expressly permitted under Section 7.2.5 [Liquidations, Mergers,
Etc.] or 7.2.6 [Disposition of Assets or Subsidiaries], or any Loan Party or Subsidiary of a Loan Party is enjoined, restrained or in any way prevented by court
order from conducting all or any material part of its business and such injunction, restraint or other preventive order is not dismissed within thirty (30) days after the entry thereof; 


        8.1.14.    Change of Control.    



          (i)  Any
person or group of persons (within the meaning of Sections 13(d) or 14(a) of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial
ownership of (within the meaning of Rule 13d-3 promulgated by the SEC under said Act) 20% or more of the voting capital stock of the Borrower; or (ii) within a period of
twelve (12) consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new or replacement directors whose election by the
board of directors, or whose nomination for election, was approved by the vote of at least a majority of the directions then in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower; 




        8.1.15.    Involuntary Proceedings.    



        A
proceeding shall have been instituted in a court having jurisdiction in the premises seeking a decree or order for relief in respect of any Loan Party or Subsidiary of a Loan Party in
an involuntary case under any applicable bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator, conservator (or similar official) of any Loan Party or Subsidiary of a Loan Party for any substantial part of its property, or for the winding-up or liquidation of
its affairs, and 



58





 





such proceeding shall remain undismissed or unstayed and in effect for a period of sixty (60) consecutive days or such court shall enter a decree or order granting any of the relief sought in
such proceeding; or 


        8.1.16.    Voluntary Proceedings.    


        Any
Loan Party or Subsidiary of a Loan Party shall commence a voluntary case under any applicable bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect,
shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator, conservator (or other similar official) of itself or for any substantial part of its property or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any action in furtherance of any of the foregoing. 




        8.2    Consequences of Event of Default.    



        8.2.1.    Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings.    



        If
an Event of Default specified under Sections 8.1.1 through 8.1.13 shall occur and be continuing, the Banks and the Agent shall be under no further obligation to make Revolving Credit
Loans or issue Letters of Credit, as the case may be, and the Agent may, and upon the request of the Required Banks, shall by written notice to the Borrower, take one or both of the following actions:
(i) terminate the Commitments and thereupon the Commitments shall be terminated and of no further force and effect, or (ii) declare the unpaid principal amount of the Revolving Credit
Notes then outstanding and all interest accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to the Banks hereunder and thereunder to be forthwith due and payable, and the same
shall thereupon become and be immediately due and payable to the Agent for the benefit of each Bank without presentment, demand, protest or any other notice of any kind, all of which are hereby
expressly waived, and (ii) require the Borrower to, and the Borrower shall thereupon, deposit in a non-interest-bearing account with the Agent, as cash collateral for its
Obligations under the Loan Documents, an amount equal to the maximum amount currently or at any time thereafter available to be drawn on all outstanding Letters of Credit, and the Borrower hereby
pledges to the Agent and the Banks, and grants to the Agent and the Banks a security interest in, all such cash as security for such Obligations. Upon the curing of all existing Events of Default to
the satisfaction of the Required Banks, the Agent shall return such cash collateral to the Borrower; and 


        8.2.2.    Bankruptcy, Insolvency or Reorganization Proceedings.    


        If
an Event of Default specified under 8.1.14 [Change of Control], Section 8.1.15 [Involuntary Proceedings] or 8.1.16
[Voluntary Proceedings] shall occur, the Commitments shall automatically terminate and be of no further force and effect, the Banks shall be under no further obligations to
make Revolving Credit Loans hereunder and the unpaid principal amount of the Loans then outstanding and all interest accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to the
Banks hereunder and thereunder shall be immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and 


        8.2.3.    Set-off.    


        If
an Event of Default shall occur and be continuing, any Bank to whom any Obligation is owed by any Loan Party hereunder or under any other Loan Document or any participant of such Bank
which has agreed in writing to be bound by the provisions of Section 9.13 [Equalization of Banks] and any branch, Subsidiary or Affiliate of such Bank or participant
anywhere in the world shall have the right, in addition to all other rights and remedies available to it, without notice to such Loan Party, to set-off against and apply to the then unpaid
balance of all the Loans and all 



59





 





other Obligations of the Borrower and the other Loan Parties hereunder or under any other Loan Document any debt owing to, and any other funds held in any manner for the account of, the Borrower or
such other Loan Party by such Bank or participant or by such branch, Subsidiary or Affiliate,
including all funds in all deposit accounts (whether time or demand, general or special, provisionally credited or finally credited, or otherwise) now or hereafter maintained by the Borrower or such
other Loan Party for its own account (but not including funds held in custodian or trust accounts) with such Bank or participant or such branch, Subsidiary or Affiliate. Such right shall exist whether
or not any Bank or the Agent shall have made any demand under this Agreement or any other Loan Document, whether or not such debt owing to or funds held for the account of the Borrower or such other
Loan Party is or are matured or unmatured and regardless of the existence or adequacy of any Guaranty or any other security, right or remedy available to any Bank or the Agent; and 


        8.2.4.    Suits, Actions, Proceedings.    



        If
an Event of Default shall occur and be continuing, and whether or not the Agent shall have accelerated the maturity of Loans pursuant to any of the foregoing provisions of this
Section 8.2, the Agent or any Bank, if owed any amount with respect to the Loans, may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate
proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement or the other Loan Documents, including as permitted by applicable Law the obtaining of the  ex parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the Agent or such Bank; and 


        8.2.5.    Application of Proceeds; Collateral Sharing.    



        8.2.5.1    Application of Proceeds.    


        From
and after the date on which the Agent has taken any action pursuant to this Section 8.2 [Consequences of Event of Default] and until all Obligations
of the Loan Parties have been paid in full, any and all proceeds received by the Agent from the exercise of any remedy by the Agent, shall be applied as follows: 



          (i)  first,
to reimburse the Agent and the Banks for out-of-pocket costs, expenses and disbursements, including reasonable attorneys' and paralegals'
fees and legal expenses, incurred by the Agent or the Banks in connection with collection of any Obligations of any of the Loan Parties under any of the Loan Documents; 


        (ii)  second,
to the repayment of all Indebtedness then due and unpaid of the Loan Parties to the Banks incurred under this Agreement or any of the other Loan Documents or
any Interest Rate Hedge or Currency Hedge provided by a Bank, whether of principal, interest, fees, expenses or otherwise, in such manner as the Agent may determine in its discretion; and 


        (iii)  the
balance, if any, as required by Law. 





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        8.2.5.2    Collateral Sharing.    



        All
Liens granted under the Pledge Agreement and any other Loan Document (the "Collateral Documents") shall secure ratably and on a pari passu basis (i) the Obligations in favor
of the Agent and the Banks hereunder and (ii) the Obligations incurred by any of the Loan Parties in favor of any Bank which provides an Interest Rate Hedge or Currency Hedge (in each case, the
"IRH Provider"). The Agent under the Collateral Documents shall be deemed to serve as the collateral agent (the "Collateral Agent") for the IRH Provider and the Banks hereunder,  provided that the
Collateral Agent shall comply with the instructions and directions of the Agent (or the Banks under this Agreement to the extent that
this Agreement or any other Loan Documents empowers the Banks to direct the Agent), as to all matters relating to the Collateral, including the maintenance and disposition thereof. No IRH Provider
(except in its capacity as a Bank hereunder) shall be entitled or have the power to direct or instruct the Collateral Agent on any such matters or to control or direct in any manner the maintenance or
disposition of the Collateral. 




        8.2.6.    Other Rights and Remedies.    


        In
addition to all of the rights and remedies contained in this Agreement or in any of the other Loan Documents, the Agent shall have all of the rights and remedies under applicable Law,
all of which rights and remedies shall be cumulative and non-exclusive, to the extent permitted by Law. The Agent may, and upon the request of the Required Banks shall, exercise all
post-default rights granted to the Agent and the Banks under the Loan Documents or applicable Law. 



 
 

9. THE AGENT


        9.1    Appointment.    



        Each
Bank hereby irrevocably designates, appoints and authorizes ABN AMRO to act as Agent for such Bank under this Agreement and to execute and deliver or accept on behalf of each of the
Banks the other Loan Documents. Each Bank hereby irrevocably authorizes the Agent to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents and any other instruments and agreements referred to herein, and to exercise such powers and to perform such duties
hereunder as are specifically delegated to or required of the Agent by the terms hereof, together with such powers as are reasonably incidental thereto. ABN AMRO agrees to act as the Agent on behalf
of the Banks to the extent provided in this Agreement. 


        9.2    Delegation of Duties.    


        The
Agent may perform any of its duties hereunder by or through agents or employees (provided such delegation does not constitute a
relinquishment of its duties as Agent) and, subject to Sections 9.5 [Reimbursement of Agent by Borrower, Etc.] and 9.6 [Exculpatory Provisions; Limitation of
Liability], shall be entitled to engage and pay for the advice or services of any attorneys, accountants or other experts concerning all matters pertaining to its duties hereunder and to
rely upon any advice so obtained. 


        9.3    Nature of Duties; Independent Credit Investigation.    


        The
Agent shall have no duties or responsibilities except those expressly set forth in this Agreement and no implied covenants, functions, responsibilities, duties, obligations, or
liabilities shall be read into this Agreement or otherwise exist. The duties of the Agent shall be mechanical and administrative in nature; the Agent shall not have by reason of this Agreement a
fiduciary or trust relationship in respect of any Bank; and nothing in this Agreement, expressed or implied, is intended to or shall be so construed as to impose upon the Agent any obligations in
respect of this Agreement except as expressly set forth herein. Without limiting the generality of the foregoing, the use of the 


61





 




term "agent" in this Agreement with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Each Bank expressly
acknowledges (i) that the Agent has not made any representations or warranties to it and that no act by the Agent hereafter taken, including any review of the affairs of any of the Loan
Parties, shall be deemed to constitute any representation or warranty by the Agent to any Bank; (ii) that it has made and will continue to make, without reliance upon the Agent, its own
independent investigation of the financial condition and affairs and its own appraisal of the creditworthiness of each of the Loan Parties in connection with this Agreement and the making and
continuance of the Loans hereunder; and (iii) except as expressly provided herein, that the Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any
Bank with any credit or other information with respect thereto, whether coming into its possession before the making of any Loan or at any time or times thereafter. 



        9.4    Actions in Discretion of Agent; Instructions From the Banks.    


        The
Agent agrees, upon the written request of the Required Banks, to take or refrain from taking any action of the type specified as being within the Agent's rights, powers or discretion
herein, provided that the Agent shall not be required to take any action which exposes the Agent to personal liability or which is contrary to this
Agreement or any other Loan Document or applicable Law. In the absence of a request by the Required Banks, the Agent shall have authority, in its sole discretion, to take or not to take any such
action, unless this Agreement specifically requires the consent of the Required Banks or all of the Banks. Any action taken or failure to act pursuant to such instructions or discretion shall be
binding on the Banks, subject to Section 9.6 [Exculpatory Provisions, Etc.]. Subject to the provisions of Section 9.6 [Exculpatory Provisions;
Limitation of Liability], no Bank shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Banks, or in the absence of such instructions, in the absolute discretion of the Agent. 


        9.5    Reimbursement and Indemnification of Agent by the Borrower.    



        The
Borrower unconditionally agrees to pay or reimburse the Agent and hold the Agent harmless against (a) liability for the payment of all reasonable
out-of-pocket costs, expenses and disbursements, including reasonable fees and expenses of counsel (including the allocated costs of staff counsel), appraisers and
environmental consultants, incurred by the Agent (i) in connection with the development, negotiation, preparation, printing, execution, administration, syndication, interpretation and
performance of this Agreement and the other Loan Documents, (ii) relating to any requested amendments, waivers or consents pursuant to the provisions hereof, (iii) in connection with the
enforcement of this Agreement or any other Loan Document or collection of amounts due hereunder or thereunder or the proof and allowability of any claim arising under this Agreement or any other Loan
Document, whether in bankruptcy or receivership proceedings or otherwise, and (iv) in any workout or restructuring or in connection with the protection, preservation, exercise or enforcement of
any of the terms hereof or of any rights hereunder or under any other Loan Document or in connection with any foreclosure, collection or bankruptcy proceedings, and (b) all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the
Agent, in its capacity as such, in any way relating to or arising out of this Agreement or any other Loan Documents or any action taken or omitted by the Agent hereunder or thereunder. In addition,
the Borrower agrees to reimburse and pay all reasonable out-of-pocket expenses of the Agent's regular employees and agents engaged periodically to perform audits of the Loan
Parties' books, records and business properties. 


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        9.6    Exculpatory Provisions; Limitation of Liability.    


        Neither
the Agent nor any of its directors, officers, employees, agents, attorneys or Affiliates shall (a) be liable to any Bank for any action taken or omitted to be taken by it
or them hereunder, or in connection herewith including pursuant to any Loan Document, unless caused by its or their own gross negligence or willful misconduct, (b) be responsible in any manner
to any of the Banks for the effectiveness, enforceability, genuineness, validity or the due execution of this Agreement or any other Loan Documents or for any recital, representation, warranty,
document, certificate, report or statement herein or made or furnished under or in connection with this Agreement or any other Loan Documents, or (c) be under any obligation to any of the Banks
to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions hereof or thereof on the part of the Loan Parties, or the financial condition of the Loan
Parties, or the existence or possible existence of any Event of Default or Potential Default. No claim may be made by any of the Loan Parties, any Bank, the Agent or any of their respective
Subsidiaries against the Agent, any Bank or any of their respective directors, officers, employees, agents, attorneys or Affiliates, or any of them, for any special, indirect or consequential damages
or, to the fullest extent permitted by Law, for any punitive damages in respect of any claim or cause of action (whether based on contract, tort, statutory liability, or any other ground) based on,
arising out of or related to any Loan Document or the transactions contemplated hereby or any act, omission or event occurring in connection therewith, including the negotiation, documentation,
administration or collection of the Loans, and each of the Loan Parties, (for itself and on behalf of each of its Subsidiaries), the Agent and each Bank hereby waive, releases and agree never to sue
upon any claim for any such damages, whether such claim now exists or hereafter arises and whether or not it is now known or suspected to exist in its favor. Each Bank agrees that, except for notices,
reports and other documents expressly required to be furnished to the Banks by the Agent hereunder or given to the Agent for the account of or with copies for the Banks, the Agent and each of its
directors, officers, employees, agents, attorneys or Affiliates shall not have any duty or responsibility to provide any Bank with an credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of the Loan Parties which may come into the possession of the Agent or any of its directors, officers, employees, agents,
attorneys or Affiliates. 


        9.7    Reimbursement and Indemnification of Agent by Banks.    



        Each
Bank agrees to reimburse and indemnify the Agent (to the extent not reimbursed by the Borrower and without limiting the Obligation of the Borrower to do so) in proportion to its
Ratable Share from and against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including attorneys' fees and disbursements
(including the allocated costs of staff counsel), and costs of appraisers and environmental consultants, of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the
Agent, in its capacity as such, in any way relating to or arising out of this Agreement or any other Loan Documents or any action taken or omitted by the Agent hereunder or thereunder,  provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (a) if the same results from the Agent's gross negligence or willful misconduct, or (b) if such Bank was not given notice of the subject claim and the
opportunity to participate in the defense thereof, at its expense (except that such Bank shall remain liable to the extent such failure to give notice does not result in a loss to the Bank), or
(c) if the same results from a compromise and settlement agreement entered into without the consent of such Bank, which shall not be unreasonably withheld. In addition, each Bank agrees
promptly upon demand to reimburse the Agent (to the extent not reimbursed by the Borrower and without limiting the Obligation of the Borrower to do so) in proportion to its Ratable Share for all
amounts due and payable by the Borrower to the Agent in connection with the Agent's periodic audit of the Loan Parties' books, records and business properties. 


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        9.8    Reliance by Agent.    


        The
Agent shall be entitled to rely upon any writing, telegram, telex or teletype message, resolution, notice, consent, certificate, letter, cablegram, statement, order or other document
or conversation by telephone or otherwise believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon the advice and opinions of counsel
and other professional advisers selected by the Agent. The Agent shall be fully justified in failing or refusing to take any action hereunder unless it shall first be indemnified to its satisfaction
by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. 


        9.9    Notice of Default.    


        The
Agent shall not be deemed to have knowledge or notice of the occurrence of any Potential Default or Event of Default except with respect to defaults in the payment of principal,
interest and fees required to be paid to Agent on account of Banks unless the Agent has received written notice from a Bank or the Borrower referring to this Agreement, describing such Potential
Default or Event of Default and stating that such notice is a "notice of default." 


        9.10    Notices.    


        The
Agent shall promptly send to each Bank a copy of all notices received from the Borrower pursuant to the provisions of this Agreement or the other Loan Documents promptly upon receipt
thereof. The Agent shall promptly notify the Borrower and the other Banks of each change in the ABR and the effective date thereof. 



        9.11    Banks in Their Individual Capacities; Agent in Its Individual Capacity.    


        With
respect to its Revolving Credit Commitment, the Revolving Credit Loans made by it and any other rights and powers given to it as a Bank hereunder or under any of the other Loan
Documents, the Agent shall have the same rights and powers hereunder as any other Bank and may exercise the same as though it were not the Agent, and the term "Bank" and "Banks" shall, unless the
context otherwise indicates, include the Agent in its individual capacity. ABN AMRO and its Affiliates and
each of the Banks and their respective Affiliates may, without liability to account, except as prohibited herein, make loans to, issue letters of credit for the account of, acquire equity interests
in, accept deposits from, discount drafts for, act as trustee under indentures of, and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with, the Loan
Parties and their Affiliates, in the case of the Agent, as though it were not acting as Agent hereunder and in the case of each Bank, as though such Bank were not a Bank hereunder, in each case
without notice to or consent of the other Banks. The Banks acknowledge that, pursuant to such activities, the Agent or its Affiliates may (i) receive information regarding the Loan Parties or
any of their Subsidiaries or Affiliates (including information that may be subject to confidentiality obligations in favor of the Loan Parties or such Subsidiary or Affiliate) and acknowledge that the
Agent shall be under no obligation to provide such information to them, and (ii) accept fees and other consideration from the Loan Parties for services in connection with this Agreement and
otherwise without having to account for the same to the Banks. 


        9.12    Holders of Notes.    


        The
Agent may deem and treat any payee of any Note as the owner thereof for all purposes hereof unless and until written notice of the assignment or transfer thereof shall have been
filed with the Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee or assignee of such Note or of any Note or Notes issued in exchange therefor. 


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        9.13    Equalization of Banks.    



        The
Banks and the holders of any participations in any Commitments or Loans or other rights or obligations of a Bank hereunder agree among themselves that, with respect to all amounts
received by any Bank or any such holder for application on any Obligation hereunder or under any such participation, whether received by voluntary payment, by realization upon security, by the
exercise of the right of set-off or banker's lien, by counterclaim or by any other non-pro rata source, equitable adjustment will be made in the manner stated in the following
sentence so that, in effect, all such excess amounts will be shared ratably among the Banks and such holders in proportion to their interests in payments on the Loans, except as otherwise provided in
Section 3.4.3 [Agent's and Bank's Rights], 4.4.2 [Replacement of a Bank] or 4.6 [Additional Compensation in Certain
Circumstances]. The Banks or any such holder receiving any such amount shall purchase for cash from each of the other Banks an interest in such Bank's Loans in such amount as shall result
in a ratable participation by the Banks and each such holder in the aggregate unpaid amount of the Loans, provided that if all or any portion of such
excess amount is thereafter recovered from the Bank or the holder making such purchase, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by law (including court order) to be paid by the Bank or the holder making such purchase. 


        9.14    Successor Agent.    


        The
Agent (i) may resign as Agent or (ii) shall resign if such resignation is requested by the Required Banks (if the Agent is a Bank, the Agent's Loans and its Commitment
shall be considered in determining whether the Required Banks have requested such resignation) or required by Section 4.4.2 [Replacement of a Bank], in either case of
(i) or (ii) by giving not less than thirty (30) days' prior written notice to the Borrower. If the Agent shall resign under this Agreement, then either (a) the Required
Banks shall appoint from among the Banks a successor agent for the Banks, subject to the consent of the Borrower (such consent not to be unreasonably withheld, nor, when there exists an Event of
Default, required) or (b) if a successor agent shall not be so appointed and approved within the thirty (30) day period following the Agent's notice to the Banks of its resignation, then
the Agent shall appoint, with the consent of the Borrower (such consent not to be unreasonably withheld nor, when there exists an Event of Default, required) a successor agent who shall serve as Agent
until such time as the Required Banks appoint and the Borrower consents to the appointment of a successor agent. Upon its appointment pursuant to either clause (a) or (b) above, such
successor agent shall succeed to the rights, powers and duties of the Agent, and the term "Agent" shall mean such successor agent, effective upon its appointment, and the former Agent's rights, powers
and duties as Agent shall be terminated without any other or further act or deed on the part of such former Agent or any of the parties to this Agreement. After the resignation of any Agent hereunder,
the provisions of this Section 9 shall inure to the benefit of such former Agent and such former Agent shall not by reason of such resignation be deemed to be released from liability for any
actions taken or not taken by it while it was an Agent under this Agreement. 


        9.15    Agent's Fee.    



        The
Borrower shall pay a nonrefundable fee to the Administrative Agent (the "Agent's Fee") for Agent's services hereunder under the terms of a letter dated March 19, 2002 (the
"Agent's Letter") between the Borrower and Agent, as amended from time to time. 


        9.16    Availability of Funds.    


        The
Agent may assume that each Bank has made or will make the proceeds of a Loan available to the Agent in the applicable currency unless the Agent shall have been notified by such Bank
on or before the later of (1) the close of Business on the Business Day preceding the Borrowing Date with respect to such Loan or (2) two hours before the time on which the Agent
actually funds the proceeds 


65





 




of such Loan to the Borrower (whether using its own funds pursuant to this Section 9.16 [Availability of Funds] or using proceeds deposited with the Agent by the Banks
and whether such funding occurs before or after the time on which Banks are required to deposit the proceeds of such Loan with the Agent). The Agent may, in reliance upon such assumption (but shall
not be required to), make
available to the Borrower a corresponding amount in the applicable currency. If such corresponding amount is not in fact made available to the Agent by such Bank in the applicable currency, the Agent
shall be entitled to recover such amount on demand from such Bank (or, if such Bank fails to pay such amount forthwith upon such demand from the Borrower) together with interest thereon, in respect of
each day during the period commencing on the date such amount was made available to the Borrower and ending on the date the Agent recovers such amount, at a rate per annum equal to (i) the
Federal Funds Effective Rate during the first three (3) days after such interest shall begin to accrue and (ii) the applicable interest rate in respect of such Loan after the end of such
three-day period. 


        9.17    Calculations.    


        In
the absence of gross negligence or willful misconduct, the Agent shall not be liable for any error in computing the amount payable to any Bank whether in respect of the Loans, fees or
any other amounts due to the Banks under this Agreement. In the event an error in computing any amount payable to any Bank is made, the Agent, the Borrower and each affected Bank shall, forthwith upon
discovery of such error, make such adjustments as shall be required to correct such error, and any compensation therefor will be calculated at the Federal Funds Effective Rate or the Overnight Rate if
such computation relates to a Loan made in an Optional Currency. 


        9.18    Beneficiaries.    


        Except
as expressly provided herein, the provisions of this Section 9 [The Agent] are solely for the benefit of the Agent and the Banks, and the Loan
Parties shall not have any rights to rely on or enforce any of the provisions hereof. In performing its functions and duties under this Agreement, the Agent shall act solely as agent of the Banks and
does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any of the Loan Parties. 


 
 

10. MISCELLANEOUS    
  


        10.1    Modifications, Amendments or Waivers.    


        With
the written consent of the Required Banks, the Agent, acting on behalf of all the Banks, and the Borrower, on behalf of the Loan Parties, may from time to time enter into written
agreements amending or changing any provision of this Agreement or any other Loan Document or the rights of the Banks or the Loan Parties hereunder or thereunder, or may grant written waivers or
consents to a departure from the due performance of the Obligations of the Loan Parties hereunder or thereunder. Any such agreement, waiver or consent made with such written consent shall be effective
to bind all
the Banks and the Loan Parties; provided, that, without the written consent of all the Banks, no such agreement, waiver or consent may be made which
will: 



        10.1.1.    Increase of Commitment; Extension of Expiration Date.    



        Increase
the amount of the Revolving Credit Commitment of any Bank hereunder or extend the Expiration Date; 



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        10.1.2.    Extension of Payment; Reduction of Principal Interest or Fees; Modification of Terms of Payment.    


        Whether
or not any Loans are outstanding, extend the time for payment of principal or interest of any Loan (excluding the due date of any mandatory prepayment of a Loan or any mandatory
Commitment reduction in connection with such a mandatory prepayment hereunder except for mandatory reductions of the Commitments on the Expiration Date), the Commitment Fee or any other fee payable to
any Bank, or reduce the principal amount of or the rate of interest borne by any Loan or reduce the Commitment Fee or any other fee or compensation payable to any Bank, or alter the indemnification
provisions for the benefit of the Agent or the Banks contained herein, or otherwise affect the terms of payment of the principal of or interest of any Loan, the Commitment Fee or any other fee payable
to any Bank; 


        10.1.3.    Release of Collateral or Guarantor.    


        Release
any Guarantor from its Obligations under the Guaranty Agreement or any other security for any of the Loan Parties' Obligations; or 


        10.1.4.    Miscellaneous.    


        Amend
Sections 4.2 [Pro Rata Treatment of Banks], 9.6 [Exculpatory Provisions, Etc.], 9.11 [Banks in
Their Individual Capacities; Agent in Its Individual Capacity] or 9.13 [Equalization of Banks] or this Section 10.1, alter any provision regarding the
pro rata treatment of the Banks, change the definition of Required Banks, or change any requirement providing for the Banks or the Required Banks to authorize the taking of any action hereunder; 




provided, further, that no agreement, waiver or consent which would modify the interests, rights or obligations of the Agent in its capacity as Agent or
as the issuer of Letters of Credit shall be effective without the written consent of the Agent. 


        10.2    No Implied Waivers; Cumulative Remedies; Writing Required.    



        No
course of dealing and no delay or failure of the Agent or any Bank in exercising any right, power, remedy or privilege under this Agreement or any other Loan Document shall affect any
other or future exercise thereof or operate as a waiver thereof, nor shall any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power, remedy
or privilege preclude any further exercise thereof or of any other right, power, remedy or privilege. The rights and remedies of the Agent and the Banks under this Agreement and any other Loan
Documents are cumulative and not exclusive of any rights or remedies which they would otherwise have. Any waiver, permit, consent or approval of any kind or character on the part of any Bank of any
breach or default under this Agreement or any such waiver of any provision or condition of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such
writing. 


        10.3    Reimbursement and Indemnification of Banks by the Borrower; Taxes.    


        The
Borrower agrees unconditionally upon demand to pay or reimburse to each Bank (other than the Agent, as to which the Borrower's Obligations are set forth in Section 9.5
[Reimbursement of Agent By Borrower, Etc.]) and to save such Bank harmless against (i) liability for the payment of all reasonable out-of-pocket
costs, expenses and disbursements (including reasonable fees and expenses of counsel (including reasonable allocated costs of staff counsel) for each Bank except with respect to (a) and (b) below),
incurred by such Bank (a) in connection with the administration and interpretation of this Agreement, and other instruments and documents to be delivered hereunder, (b) relating to any
amendments, waivers or consents pursuant to the provisions hereof, (c) in connection with the enforcement of this Agreement or any other Loan Document, or collection of amounts due hereunder or
thereunder or the proof and allowability of any claim arising under this Agreement or any other Loan Document, whether in bankruptcy or receivership proceedings or otherwise, and (d) in any 


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workout or restructuring or in connection with the protection, preservation, exercise or enforcement of any of the terms hereof or of any rights hereunder or under any other Loan Document or in
connection with any foreclosure, collection or bankruptcy proceedings, or (ii) all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Bank, in its capacity as such, in any way relating to or arising out of this Agreement or
any other Loan Documents or any action taken or omitted by such Bank hereunder or thereunder. The Banks will attempt to minimize the fees and expenses of internal counsel to the Bank and legal counsel
for the Banks which are subject to reimbursement by the Borrower hereunder by considering the usage of one law firm to represent the Banks and the Agent if appropriate under the circumstances. The
Borrower agrees unconditionally to pay all stamp, document, transfer, recording or filing taxes or fees and similar impositions now or hereafter determined by the Agent or any Bank to be payable in
connection with this Agreement or any other Loan Document, and the Borrower agrees unconditionally to save the Agent and the Banks harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or delay in paying any such taxes, fees or impositions. 


        10.4    Holidays.    


        Whenever
payment of a Loan to be made or taken hereunder shall be due on a day which is not a Business Day such payment shall be due on the next Business Day (except as provided in
Section 3.2 [Interest Periods] with respect to Interest Periods under the LIBOR Option) and such extension of time shall be included in computing interest and fees,
except that the Loans shall be due on the Business Day preceding the Expiration Date if the Expiration Date is not a Business Day. Whenever any payment or action to be made or taken hereunder (other
than payment of the Loans) shall be stated to be due on a day which is not a Business Day, such payment or action shall be made or taken on the next following Business Day, and such extension of time
shall not be included in computing interest or fees, if any, in connection with such payment or action. 


        10.5    Funding by Branch, Subsidiary or Affiliate.    



        10.5.1.    Notional Funding.    



        Each
Bank shall have the right from time to time, without notice to the Borrower, to deem any branch, Subsidiary or Affiliate (which for the purposes of this Section 10.5 shall
mean any corporation or association which is directly or indirectly controlled by or is under direct or indirect common control with any corporation or association which directly or indirectly
controls such Bank) of such Bank to have made, maintained or funded any Loan to which the LIBOR Option applies at any time, provided that immediately
following (on the assumption that a payment were then due from the Borrower to such other office), and as a result of such change, the Borrower would not be under any greater financial obligation
pursuant to Section 4.6 [Additional Compensation in Certain Circumstances] than it would have been in the absence of such change. Notional funding offices may be
selected by each Bank without regard to such Bank's actual methods of making, maintaining or funding the Loans or any sources of funding actually used by or available to such Bank. 


        10.5.2.    Actual Funding.    


        Each
Bank shall have the right from time to time to make or maintain any Loan by arranging for a branch, Subsidiary or Affiliate of such Bank to make or maintain such Loan subject to the
last sentence of this Section 10.5.2. If any Bank causes a branch, Subsidiary or Affiliate to make or maintain any part of the Loans hereunder, all terms and conditions of this Agreement shall,
except where the context clearly requires otherwise, be applicable to such part of the Loans to the same extent as if such Loans were made or maintained by such Bank, but in no event shall any Bank's
use of such a branch, Subsidiary or Affiliate to make or maintain any part of the Loans hereunder cause such Bank or such branch, Subsidiary or Affiliate to incur any cost or expenses payable by 



68





 





the Borrower hereunder or require the Borrower to pay any other compensation to any Bank (including any expenses incurred or payable pursuant to Section 4.6 [Additional
Compensation in Certain Circumstances]) which would otherwise not be incurred. 




        10.6    Notices; Lending Offices.    


        Any
notice, request, demand, direction or other communication (for purposes of this Section 10.6 only, a "Notice") to be given to or made upon any party hereto under any provision
of this Agreement shall be given or made by telephone or in writing (which includes means of electronic transmission (i.e., "e-mail") or facsimile transmission or by setting forth such
Notice on a site on the World Wide Web (a "Website Posting") but only, in the case of a Website Posting, if Notice of such Website Posting (including the information necessary to access such site) has
previously been delivered to the applicable parties hereto by another means set forth in this Section 10.6) in accordance with this Section 10.6. Any such Notice must be delivered to the
applicable parties hereto at the addresses and numbers set forth under their respective names on Schedule 1.1(B) hereof or in accordance with any subsequent unrevoked Notice from any such party
that is given in accordance with this Section 10.6. Any Notice shall be effective: 



          (i)  In
the case of hand-delivery, when delivered; 


        (ii)  If
given by mail, four days after such Notice is deposited with the United States Postal Service for delivery within the United States, or seven (7) days after
such Notice is deposited with the United States Postal Service (or other national postal service in any jurisdiction outside the United States) for any Notice served in or from any jurisdiction
outside the United States, with first-class postage prepaid, return receipt requested; 


        (iii)  In
the case of a telephonic Notice, when a party is contacted by telephone, if delivery of such telephonic Notice is confirmed no later than the next Business Day by
hand delivery, a facsimile or electronic transmission, a Website Posting or overnight courier delivery of a confirmatory notice (received at or before noon on such next Business Day); 


        (iv)  In
the case of a facsimile transmission, when sent to the applicable party's facsimile machine's telephone number if the party sending such Notice receives confirmation
of the delivery thereof from its own facsimile machine; 


        (v)  In
the case of electronic transmission, when actually received; 



        (vi)  In
the case of a Website Posting, upon delivery of a Notice of such posting (including the information necessary to access such web site) by another means set forth in
this Section 10.6; and 


      (vii)  If
given by any other means (including by overnight courier), when actually received. 




Notwithstanding
anything to the contrary contained in the foregoing, any Notice to Borrower is sufficient Notice for all and any Loan Party. Any Bank giving a Notice to a Loan Party shall concurrently
send a copy thereof to the Agent, and the Agent shall promptly notify the other Banks of its receipt of such Notice. Schedule 1.1(B) lists the Lending Offices of each Bank. Each Bank may change
its Lending Office, and each Loan Party may change its notice address, pursuant to this Section 10.6 by written notice to the other parties hereto. 


        10.7    Severability.    


        The
provisions of this Agreement are intended to be severable. If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction. 


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        10.8    Governing Law.    


        Each
Letter of Credit and Section 2.11 [Letter of Credit Subfacility] shall be subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, as the same may be revised or amended from time to time, and to the extent not inconsistent therewith, the internal laws of the
State of New York without regard to its conflict of laws principles, and the balance of this Agreement shall be deemed to be a contract under the Laws of the State of New York and for all purposes
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without regard to its conflict of laws principles. 


        10.9    Prior Understanding.    


        This
Agreement and the other Loan Documents supersede all prior understandings and agreements, whether written or oral, between the parties hereto and thereto relating to the
transactions provided for herein and therein, including any prior confidentiality agreements and commitments. 


        10.10    Duration; Survival.    


        All
representations and warranties of the Loan Parties contained herein or made in connection herewith shall survive the making of Loans and issuance of Letters of Credit and shall not
be waived by the execution and delivery of this Agreement, any investigation by the Agent or the Banks, the making of Loans, issuance of Letters of Credit, or payment in full of the Loans. All
covenants and agreements of the Loan Parties contained in Sections 7.1 [Affirmative Covenants], 7.2 [Negative Covenants] and
7.3 [Reporting Requirements] herein shall continue in full force and effect from and after the date hereof so long as the Borrower may borrow or request Letters of
Credit hereunder and until termination of the Commitments and payment in full of the Loans and expiration or termination of all Letters of Credit. All covenants and agreements of the Borrower
contained herein relating to the payment of principal, interest, premiums, additional compensation or expenses and indemnification, including those set forth in Section 4
[Payments] and Sections 9.5 [Reimbursement and Indemnification of Agent by Borrower], 9.7 [Reimbursement and Indemnification
of Agent by Banks] and 10.3 [Reimbursement and Indemnification of Banks by Borrower; Taxes], shall survive payment in full of the Loans, expiration or
termination of the Letters of Credit and termination of the Commitments. 


        10.11    Successors and Assigns.    



          (i)  This
Agreement shall be binding upon and shall inure to the benefit of the Banks, the Agent, the Loan Parties and their respective successors and assigns, except that
none of the Loan Parties may assign or transfer any of its rights and Obligations hereunder or any interest herein. Each Bank may, at its own cost, make assignments of or sell participations in all or
any part of its Revolving Credit Commitments and the Loans made by it to one or more banks or other entities, subject to the consent of the Borrower and the Agent with respect to any assignee (but not
a participant), such consent not to be unreasonably withheld or delayed, provided that (1) no consent of the Borrower or Agent shall be required
(A) if an Event of Default exists and is continuing, or (B) in the case of an assignment by a Bank to any Bank or to an Affiliate of any Bank; provided, however, that any Assignment to
an Affiliate will not result in an increase in the Taxes for which the Borrower is responsible pursuant to Section 4.8.1. hereof, (2) any assignment by a Bank to a Person other than an
Affiliate of such Bank may not be made in amounts less than the lesser of $5,000,000 or the amount of the assigning Bank's Commitment, and (3) a Bank may assign an interest or sell a
participation in less than 100% of its Commitments but only if such Bank sells an equal percentage interest or participation in each of its Loans. In the case of an assignment, upon receipt by the
Agent of the Assignment and Assumption Agreement, the assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights, benefits and obligations as it would
have if it had been a signatory Bank hereunder, the Commitments shall be adjusted accordingly, and upon surrender of any Revolving Credit Note subject to such assignment, 



70





 


the Borrower shall execute and deliver a new Revolving Credit Note to the assignee, if such assignee requests such a Note in an amount equal to the amount of the Revolving Credit Commitment assumed
by it and a new Revolving Credit Note to the assigning Bank, if the assigning Bank requests such a Note, in an amount equal to the Revolving Credit Commitment retained by it hereunder. Any Bank which
assigns any or all of its Commitment or Loans to a Person other than an Affiliate of such Bank shall pay to the Agent a service fee in the amount of $3500 for each assignment. In the case of a
participation, the participant shall only have the rights specified in Section 8.2.3 [Set-off] (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto and not to include any voting rights except with respect to changes of the type
referenced in Sections 10.1.1 [Increase of Commitment, Etc.], 10.1.2 [Extension of Payment, Etc.], or 10.1.3 [Release
of Collateral or Guarantor]), all of such Bank's obligations under this Agreement or any other Loan Document shall remain unchanged, and all amounts payable by any Loan Party hereunder or
thereunder shall be determined as if such Bank had not sold such participation. 


        (ii)  Any
assignee or participant which is not incorporated under the Laws of the United States of America or a state thereof shall deliver to the Borrower and the Agent the
form of certificate described in Section 10.17 [Tax Withholding Clause] relating to federal income tax withholding. Each Bank may furnish any publicly available
information concerning any Loan Party or its Subsidiaries and any other information concerning any Loan Party or its Subsidiaries in the possession of such Bank from time to time to assignees and
participants (including prospective assignees or participants), provided that such assignees and participants agree to be bound by the provisions of
Section 10.12 [Confidentiality]. 


        (iii)  Notwithstanding
any other provision in this Agreement, any Bank may at any time pledge or grant a security interest in all or any portion of its rights under this
Agreement, its Note (if any) and the other Loan Documents to any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14
without notice to or consent of the Borrower or the Agent. No such pledge or grant of a security interest shall release the transferor Bank of its obligations hereunder or under any other Loan
Document. 




        10.12    Confidentiality.    



        10.12.1.    General.    


        The
Agent and the Banks each agree to keep confidential all information obtained from any Loan Party or its Subsidiaries which is nonpublic and confidential or proprietary in nature
(including any information the Borrower specifically designates as confidential), except as provided below, and to use such information only in connection with their respective capacities under this
Agreement and for the purposes contemplated hereby. The Agent and the Banks shall be permitted to disclose such information (i) to outside legal counsel, accountants and other professional
advisors who need to know such information in connection with the administration and enforcement of this Agreement, subject to agreement of such Persons to maintain the confidentiality, (ii) to
assignees and participants as contemplated by Section 10.11 [Successors and Assigns], and prospective assignees and participants, (iii) to
the extent requested by any bank regulatory authority or, with notice to the Borrower (to the extent permitted by law), as otherwise required by applicable Law or by any subpoena or similar legal
process, or in connection with any investigation or proceeding arising out of the transactions contemplated by this Agreement, (but the Banks and the Agent will cooperate with the Borrower to limit
such disclosure consistent with applicable Laws and the reasonable policies of the Banks and the Agent), (iv) if it becomes publicly available other than as a result of a breach of this
Agreement or becomes available from a source not known to be subject to confidentiality restrictions, or (v) if the Borrower shall have consented to such disclosure. 



71





 




        10.12.2.    Sharing Information With Affiliates of the Banks.    


        Each
Loan Party acknowledges that from time to time financial advisory, investment banking and other services may be offered or provided to the Borrower or one or more of its Affiliates
(in connection with this Agreement or otherwise) by any Bank or by one or more Subsidiaries or Affiliates of such Bank and each of the Loan Parties hereby authorizes each Bank to share any information
delivered to such Bank by such Loan Party and its Subsidiaries pursuant to this Agreement, or in connection with the decision of such Bank to enter into this Agreement, to any such Subsidiary or
Affiliate of such Bank, it being understood that any such Subsidiary or affiliate of any Bank receiving such information shall be bound by the provisions of Section 10.12.1
[General] as if it were a Bank hereunder. Such Authorization shall survive the repayment of the Loans and other Obligations and the termination of the Commitments. 




        10.13    Counterparts.    


        This
Agreement may be executed by different parties hereto on any number of separate counterparts, each of which, when so executed and delivered, shall be an original, and all such
counterparts shall together constitute one and the same instrument. 


        10.14    Agent's or Bank's Consent.    


        Whenever
the Agent's or any Bank's consent is required to be obtained under this Agreement or any of the other Loan Documents as a condition to any action, inaction, condition or event,
the Agent and each Bank shall be authorized to give or withhold such consent in its sole and absolute discretion and to condition its consent upon the giving of additional collateral, the payment of
money or any other matter. 


        10.15    Exceptions.    



        The
representations, warranties and covenants contained herein shall be independent of each other, and no exception to any representation, warranty or covenant shall be deemed to be an
exception to any other representation, warranty or covenant contained herein unless expressly provided, nor shall any such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law. 


        10.16    CONSENT TO FORUM; WAIVER OF JURY TRIAL.    



        EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF NEW YORK, NEW YORK COUNTY AND THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED
TO SUCH LOAN PARTY AT THE ADDRESSES PROVIDED FOR IN SECTION 10.6 [NOTICES, ETC.] AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. EACH
LOAN PARTY WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE. EACH LOAN
PARTY, THE AGENT AND THE BANKS HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
COLLATERAL TO THE FULL EXTENT PERMITTED BY LAW.


        10.17    Tax Withholding Clause.    


        The
Agent and each Bank or assignee or participant of a Bank that is not incorporated under the Laws of the United States of America or a state thereof (and, upon the written request of
the Administrative Agent, each other Bank or assignee or participant of a Bank) agrees that it will deliver 


72





 




to each of the Borrower and the Administrative Agent two (2) duly completed appropriate valid Withholding Certificates (as defined under § 1.1441-1(c)(16) of the
Income Tax Regulations (the "Regulations")) certifying its status (i.e. U.S. or foreign person) and, if appropriate, making a claim of reduced, or exemption from, U.S. withholding tax on the basis of
an income tax treaty or an exemption provided by the Internal Revenue Code. The term "Withholding Certificate" means a Form W-9; a Form W-8BEN; a
Form W-8ECI; a Form W-8IMY and the related statements and certifications as required under §§ 1.1441-1(e)(2) and (3) of
the Regulations; a statement described in § 1.871-14(c)(2)(v) of the Regulations; or any other certificates under the Internal Revenue Code or Regulations that certify
or establish the status of a payee or beneficial owner as a U.S. or foreign person. The Agent and each Bank, assignee or participant required to deliver to the Borrower and the Agent a Withholding
Certificate pursuant to the preceding sentence shall deliver such valid Withholding Certificate as
follows: (A) each Bank which is a party hereto on the Closing Date shall deliver such valid Withholding Certificate at least five (5) Business Days prior to the first date on which any
interest or fees are payable by the Borrower hereunder for the account of such Bank; (B) each assignee or participant shall deliver such valid Withholding Certificate at least five
(5) Business Days before the effective date of such assignment or participation (unless the Administrative Agent in its sole discretion shall permit such assignee or participant to deliver such
valid Withholding Certificate less than five (5) Business Days before such date in which case it shall be due on the date specified by the Agent). The Agent and each Bank, assignee or
participant which so delivers a valid Withholding Certificate further undertakes to deliver to each of the Borrower and the Agent two (2) additional copies of such Withholding Certificate (or a
successor form) on or before the date that such Withholding Certificate expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent Withholding Certificate
so delivered by it, and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrower or the Agent. Notwithstanding the submission of a Withholding
Certificate claiming a reduced rate of or exemption from U.S. withholding tax, the Agent shall be entitled to withhold United States federal income taxes at the full 30% withholding rate if in its
reasonable judgment it is required to do so under the due diligence requirements imposed upon a withholding agent under § 1.1441-7(b) of the Regulations. Further, the
Agent is indemnified under § 1.1461-1(e) of the Regulations against any claims and demands of any Bank or assignee or participant of a Bank for the amount of any tax it
deducts and withholds in accordance with regulations under § 1441 of the Internal Revenue Code. 



        10.18    Joinder of Guarantors or Pledge under Pledge Agreement.    



        10.18.1.    Joinder    


        Any
Subsidiary of the Borrower which is required to join this Agreement as a Guarantor pursuant to Section 7.1.11 [Guarantors and Pledged Interests] or
Section 7.2.8 [Subsidiaries, Partnerships and Joint Ventures] shall execute and deliver to the Agent (i) a Guarantor Joinder in substantially the form attached
hereto as Exhibit 1.1(GJ) pursuant to which it shall join as a Guarantor each of the documents to which the Guarantors are parties; and
(ii) documents in the forms described in Section 6.1 [First Loans and Letters of Credit] modified as appropriate to relate to such Subsidiary. The Loan Parties
shall deliver such Guarantor Joinder and related documents to the Agent within five (5) Business Days after the date of the filing of such Subsidiary's articles of incorporation if the
Subsidiary is a corporation, the date of the filing of its certificate of limited partnership if it is a limited partnership or the date of its organization if it is an entity other than a limited
partnership or corporation. 



73











  



        10.18.2.    Pledge.    


        As
to any Restricted Subsidiary whose ownership interests are required to be pledged under the Pledge Agreement, the pledged interests (being sixty-five percent (65%) of all
of the ownership interests of Foreign Subsidiaries owned directly or indirectly only by Domestic Subsidiaries and one hundred percent (100%) of all the ownership interests of Domestic Subsidiaries
owned directly or indirectly only by Domestic Subsidiaries (whether Subsidiary Shares, Partnership Interest, LLC Interests, other capital stock or otherwise) of such Restricted Subsidiary) shall
become subject to a valid, first-lien, perfected security interest in favor of the Agent on behalf of the Banks pursuant to the Pledge Agreement. Such pledge and assignment of the
foregoing interests shall also cover all dividends, distributions and other proceeds with respect to such shares or other equity interests, and shall be evidenced by the Pledge Agreement and such
other documentation as Agent shall require to evidence, effect or perfect such pledge and assignment. 




        10.19    Limitations or Indemnification Obligations of Loan Parties.    


        The
following limitations shall apply with respect to any claim made by the Agent or any Bank against the Borrower for indemnification based upon a third party claim. 



        10.19.1.    Notices.    


        If
any Bank sustains or incurs any loss or expense for which it is indemnified by the Borrower or any Loan Party hereunder, it shall from time to time notify the Borrower of the amount
determined in good faith by such Bank (which determination may include such assumptions, allocations of costs and expenses and averaging or attribution methods as such Bank shall deem reasonable) to
be necessary to indemnify such Bank for such loss or expense. Such notice shall set forth in reasonable detail the basis for such determination. 


        10.19.2.    Exclusions.    


        The
Borrower shall not be liable for any portion of liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of the Agent or any
Bank if the same result from the Agent's or the Bank's gross negligence or willful misconduct, or if the Borrower was not given notice of the subject claim and the opportunity to participate in the
defense thereof, at its expense (except that the Borrower shall remain liable to the extent such failure to give notice does not result in a loss to the Borrower), or if the same results from a
compromise or settlement entered into without the consent of the Borrower which consent shall not be unreasonably withheld or delayed. 




        10.20    Limitation on Damages.    


        EXCEPT
AS PROHIBITED BY LAW, THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. 


        10.21    Concerning Agent Terms.    


        Notwithstanding
anything contained herein which may be construed to the contrary, neither the Co-Syndication Agents nor the Lead Arranger shall exercise any of the rights or
have any of the responsibilities of the Agent hereunder, or any other rights or responsibilities other than their rights and responsibilities (if any) as a Bank hereunder. 


74










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



	 	 	VIASYS HEALTHCARE INC.
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Vice President, Corporate Treasurer and Assistant Secretary
	



	
 	

 	

 
	 	 	GRASON-STADLER, INC.
	



	
 	

By:	

    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Assistant Clerk
	



	
 	

 	

 
	 	 	CORPAK LLC
	



	
 	

By:	

    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Treasurer
	



	
 	

 	

 
	 	 	BIRD PRODUCTS CORPORATION
	



	
 	

By:	

    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Treasurer
	



	
 	
SENSORMEDICS CORPORATION
	



	
 	

By:	

    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Treasurer




SIGNATURES CONTINUE ON THE FOLLOWING PAGE





SIGNATURES CONTINUED FROM THE PRECEDING PAGE  



	 	 	NICOLET VASCULAR INC.
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Treasurer
	



	
 	

 	

 
	 	 	TECOMET INC.
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Treasurer
	



	
 	

 	

 
	 	 	MEDICAL DATA ELECTRONICS, INC.
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Treasurer
	



	
 	

 	

 
	 	 	THERMEDICS POLYMER PRODUCTS LLC
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Treasurer
	



	
 	

 	

 
	 	 	BIRD LIFE DESIGN CORPORATION
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	Wesley N. Riemer
	 	 	Title:	Treasurer




SIGNATURES CONTINUE ON THE FOLLOWING PAGE  





 SIGNATURES CONTINUED FROM THE PRECEDING PAGE  



	 	 	ABN AMRO BANK N.V, individually and as Agent
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	James S. Kreitler
	 	 	Title:	Group Vice President
	

 	
 	

—and—
	

 	
 	

 	

 
	 	 	By:	    

	 	 	Name:	Craig W. Trautwein
	 	 	Title:	Vice President
	



	
 	

 	

 
	 	 	BANK OF AMERICA, N.A., individually and as Co-Syndication Agent
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	    

	 	 	Title:	    

	



	
 	

 	

 
	 	 	KEY CORPORATE CAPITAL INC., individually and as Co-Syndication Agent
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	    

	 	 	Title:	    

	



	
 	

 	

 
	 	 	FLEET NATIONAL BANK
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	    

	 	 	Title:	    





SIGNATURES CONTINUE ON THE FOLLOWING PAGE  





 SIGNATURES CONTINUED FROM THE PRECEDING PAGE  



	 	 	JPMORGAN CHASE BANK
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	    

	 	 	Title:	    

	



	
 	

 	

 
	 	 	FIFTH THIRD BANK
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	    

	 	 	Title:	    

	



	
 	

 	

 
	 	 	BEAR STEARNS CORPORATE LENDING INC.
	



	
 	

 	

 
	 	 	By:	    

	 	 	Name:	    

	 	 	Title:	    










   
       



SCHEDULE 1.1(B)-1









QuickLinks



Exhibit 10.18


TABLE OF CONTENTS

LIST OF SCHEDULES AND EXHIBITS



CREDIT AGREEMENT

1. CERTAIN DEFINITIONS

PRICING GRID


2. REVOLVING CREDIT AND SWING LOAN FACILITIES


3. INTEREST RATES


4. PAYMENTS

5. REPRESENTATIONS AND WARRANTIES


6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT

7. COVENANTS


8. DEFAULT


9. THE AGENT

10. MISCELLANEOUS