\n| \n Schedule 1.03<\/p>\n<\/td>\n | <\/td>\n | \n –<\/p>\n<\/td>\n | <\/td>\n | \n Existing Letters of Credit<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n iii<\/p>\n \n
\nFOUR-YEAR
\nCREDIT AGREEMENT<\/p>\n \n Dated as of June 17, 2011<\/p>\n \n Baxter International Inc., a Delaware corporation (the “Borrower<\/u>“),
\nthe financial institutions listed on the signature pages of this Agreement under
\nthe heading “Banks” (such financial institutions and any successor financial
\ninstitution that becomes a party to this Agreement pursuant to Section
\n2.05<\/u>, 5.18<\/u> or 11.06<\/u> hereinafter referred to as the
\n“Banks<\/u>“), JPMorgan Chase Bank, National Association (“JPMorgan
\nChase<\/u>“), as administrative agent hereunder (such administrative agent and
\nany successor administrative agent appointed pursuant to Section 10.06<\/u>
\nhereinafter referred to as the “Administrative Agent<\/u>“), each of Bank of
\nAmerica, N.A. (“Bank of America<\/u>“) and Citibank, N.A.
\n(“Citibank<\/u>“), as Syndication Agents (Bank of America and Citibank,
\ncollectively, hereinafter referred to as the “Syndication Agents<\/u>“), and
\neach of J.P. Morgan Securities LLC (“J.P. Morgan Securities<\/u>“), Merrill
\nLynch, Pierce, Fenner & Smith Incorporated (“Merrill<\/u>“) and Citigroup
\nGlobal Markets Inc. (“Citigroup<\/u>“), as co-lead arrangers and joint
\nbookrunners hereunder (J.P. Morgan Securities, Merrill and Citigroup,
\ncollectively, hereinafter referred to as the “Co-Lead Arrangers<\/u>“), agree
\nas follows:<\/p>\n<\/p>\n ARTICLE I<\/p>\n \n DEFINITIONS<\/p>\n \n SECTION 1.01. Defined Terms<\/u>. As used in this Four-Year Credit
\nAgreement (this “Agreement<\/u>“), the following terms shall have the
\nfollowing meanings (such meanings to be equally applicable to both the singular
\nand plural forms of the terms defined):<\/p>\n<\/p>\n “Absolute Rate<\/u>” means, with respect to an Absolute Rate Advance made
\nby a given Bank for the relevant Interest Period, the rate of interest per annum
\n(rounded to the nearest 1\/100 of 1%) offered by such Bank and accepted by the
\nBorrower with respect to such Absolute Rate Advance.<\/p>\n<\/p>\n “Absolute Rate Advance<\/u>” means an Advance made or to be made by a Bank
\npursuant to Article III<\/u> as an Absolute Rate Advance in accordance with
\nthe applicable Notice of Competitive Bid Borrowing. Each Absolute Rate Advance
\nshall bear interest at an Absolute Rate as provided in Section 5.07(d)<\/u>.\n<\/p>\n<\/p>\n “Absolute Rate Auction<\/u>” means a solicitation of Competitive Bid Quotes
\nsetting forth Absolute Rates for Absolute Rate Advances to be extended pursuant
\nto Article III<\/u>.<\/p>\n<\/p>\n “Act<\/u>” has the meaning assigned to that term in Section 11.14<\/u>.\n<\/p>\n<\/p>\n “Administrative Questionnaire<\/u>” means an Administrative Questionnaire
\nin a form supplied by the Administrative Agent.<\/p>\n<\/p>\n
\n “Advance<\/u>” means a Syndicated Advance and\/or a Competitive Bid Advance,
\nas the context requires.<\/p>\n<\/p>\n “Affiliate<\/u>” means, as to any Person, any other Person that, directly
\nor indirectly, controls, is controlled by or is under common control with such
\nPerson.<\/p>\n<\/p>\n “Aggregate Commitments<\/u>” means, at any time, the aggregate amount of
\nthe Commitments of all the Banks hereunder at such time.<\/p>\n<\/p>\n “Agreed Currencies<\/u>” means (i) Dollars, (ii) so long as such currencies
\nremain Eligible Currencies, Swiss Francs, Japanese Yen, Pounds Sterling and
\nEuro, and (iii) any other Eligible Currency which the Borrower requests the
\nAdministrative Agent to include as an Agreed Currency hereunder and which is
\nacceptable to all of the Banks. For the purposes of this definition, each of the
\nspecific currencies referred to in clause (ii)<\/u>, above, shall mean and be
\ndeemed to refer to the lawful currency of the jurisdiction referred to in
\nconnection with such currency, e.g.<\/em>, “Swiss Francs” means the lawful
\ncurrency of Switzerland.<\/p>\n<\/p>\n“Applicable Lending Office<\/u>” means, with respect to each Bank, such
\nBank153s Domestic Lending Office in the case of a Base Rate Advance, such Bank153s
\nEurocurrency Lending Office in the case of a Eurocurrency Rate Advance, such
\nBank153s EURIBOR Lending Office in the case of a EURIBOR Rate Advance, and such
\nBank153s Competitive Bid Lending Office in the case of a Competitive Bid Advance.\n<\/p>\n<\/p>\n “Approved Fund<\/u>” means any Fund that is administered or managed by (a)
\na Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity
\nthat administers or manages a Bank.<\/p>\n<\/p>\n “Approximate Dollar Amount<\/u>” of any currency with respect to any amount
\nof Dollars means the Dollar Amount of such currency with respect to such amount
\nof Dollars on or as of such date, rounded up to the nearest amount of such
\ncurrency as determined by the Administrative Agent from time to time.<\/p>\n<\/p>\n “Assignment and Acceptance<\/u>” has the meaning assigned to that term in
\nSection 11.06(c)<\/u>.<\/p>\n<\/p>\n “Available Commitment<\/u>” means, with respect to any Bank at any time, an
\namount equal to (i) such Bank153s Commitment at such time minus<\/u> (ii) an
\namount equal to such Bank153s ratable share, determined on the basis that such
\nBank153s Commitment bears to all Commitments at such time, of the aggregate Dollar
\nAmount of all Competitive Bid Advances outstanding at such time minus<\/u>
\n(iii) such Bank153s L\/C Interest in the L\/C Obligations outstanding at such time.\n<\/p>\n<\/p>\n “Bank Termination Date<\/u>” has the meaning assigned to that term in
\nSection 5.18(b)<\/u>.<\/p>\n<\/p>\n “Bankruptcy Event<\/u>” means, with respect to any Person, such Person
\nbecomes the subject of a bankruptcy or insolvency proceeding, or has had a
\nreceiver, conservator, trustee, administrator, custodian, assignee for the
\nbenefit of creditors or similar Person charged with the reorganization or
\nliquidation of its business appointed for it, or, in the good faith
\ndetermination<\/p>\n<\/p>\n 2<\/p>\n \n
\nof the Administrative Agent, has taken any action in furtherance of, or
\nindicating its consent to, approval of, or acquiescence in, any such proceeding
\nor appointment, provided that a Bankruptcy Event shall not result solely by
\nvirtue of any ownership interest, or the acquisition of any ownership interest,
\nin such Person by a Governmental Authority or instrumentality thereof, provided,
\nfurther, that such ownership interest does not result in or provide such Person
\nwith immunity from the jurisdiction of courts within the United States or from
\nthe enforcement of judgments or writs of attachment on its assets or permit such
\nPerson (or such Governmental Authority or instrumentality) to reject, repudiate,
\ndisavow or disaffirm any contracts or agreements made by such Person.<\/p>\n<\/p>\n “Base Rate<\/u>” means, for any day, a rate per annum equal to the greatest
\nof (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in
\neffect on such day plus<\/u> 1<\/sup>\/2 of 1% and (c) the Eurocurrency
\nRate for deposits in Dollars for a one-month Interest Period on such day (or if
\nsuch day is not a Business Day, the immediately preceding Business Day)
\nplus<\/u> 1%; provided<\/u> that, for the avoidance of doubt, the
\nEurocurrency Rate for any day shall be based on the rate appearing on the
\nReuters BBA Libor Rate Page 3750 (or any successor or substitute page of such
\npage) at approximately 11:00 a.m. London time on such day; provided<\/u>,
\nfurther<\/u>, that the Administrative Agent shall deliver a copy of such Page
\n3750 to the Borrower within one (1) Business Day of determining such rate per
\nannum, provided<\/u> that the failure of the Administrative Agent to provide a
\ncopy of such Page 3750 shall in no way limit or modify the obligations of the
\nBorrower under this Agreement. Any change in the Base Rate due to a change in
\nthe Prime Rate, the Federal Funds Rate or the Eurocurrency Rate shall be
\neffective from and including the effective date of such change in the Prime
\nRate, the Federal Funds Rate or the Eurocurrency Rate, respectively.<\/p>\n<\/p>\n“Base Rate Advance<\/u>” means (i) an Advance made or to be made by a Bank
\npursuant to Section 2.01<\/u>, as a Base Rate Advance in accordance with the
\napplicable Notice of Syndicated Borrowing, or pursuant to Section 5.01<\/u>,
\nas a Base Rate Advance in substitution for a Fixed Rate Advance, or pursuant to
\nSection 4.06<\/u>, as a Base Rate Advance by a Bank funding an unreimbursed
\nReimbursement Obligation, and (ii) any Advance Converted into a Base Rate
\nAdvance in accordance with Section 2.03<\/u> or Section 5.01<\/u>. Each Base
\nRate Advance shall bear interest as provided in Section 5.07(a)<\/u>.<\/p>\n<\/p>\n “Borrowing<\/u>” means a Syndicated Borrowing and\/or a Competitive Bid
\nBorrowing, as the context requires.<\/p>\n<\/p>\n “Borrowing Date<\/u>” means a date on which an Advance is, or is proposed
\nto be, made hereunder, or a Letter of Credit is, or is proposed to be, issued
\nhereunder.<\/p>\n<\/p>\n “Business Day<\/u>” means (i) with respect to a Base Rate Advance or an
\nAbsolute Rate Advance or for any other purpose not relating to any borrowing,
\npayment or rate selection of Eurocurrency Advances or EURIBOR Advances, a
\nDomestic Business Day, (ii) with respect to a Eurocurrency Advance, a
\nEurocurrency Business Day, and (iii) with respect to a EURIBOR Advance, a
\nEURIBOR Business Day.<\/p>\n<\/p>\n “Change in Law<\/u>” has the meaning assigned to that term in Section
\n5.13<\/u>.<\/p>\n<\/p>\n 3<\/p>\n \n
\n“Change of Control<\/u>” means (a) the acquisition of ownership, directly
\nor indirectly, beneficially or of record, by any Person or group (within the
\nmeaning of the Exchange Act and the rules of the SEC thereunder as in effect on
\nthe date hereof) of fifty percent (50%) or more of the aggregate ordinary voting
\npower represented by the issued and outstanding Equity Interests of the Borrower
\nor (b) occupation of a majority of the seats (other than vacant seats) on the
\nboard of directors of the Borrower by Persons who were neither (i) nominated by
\nthe board of directors of the Borrower nor (ii) appointed by directors so
\nnominated.<\/p>\n<\/p>\n “Closing Date<\/u>” means June 17, 2011.<\/p>\n<\/p>\n “Code<\/u>” has the meaning assigned to that term in Section
\n5.15(d)(i)<\/u>.<\/p>\n<\/p>\n “Co-Lead Arrangers<\/u>” means J.P. Morgan Securities LLC, Merrill Lynch,
\nPierce, Fenner & Smith Incorporated, and Citigroup Global Markets Inc., in
\ntheir capacities as Co-Lead Arrangers and Joint Bookrunners.<\/p>\n<\/p>\n “Commitment<\/u>” means, with respect to any Bank at any time the amount
\nindicated opposite such Bank153s name on Schedule 1.01 hereto<\/u>, as such
\namount may from time to time have been increased pursuant to Section
\n2.05<\/u>, reduced pursuant to Section 5.05<\/u> or modified in accordance with
\nSection 11.06<\/u>.<\/p>\n<\/p>\n “Competitive Bid Advance<\/u>” means an advance by a Bank to the Borrower
\npursuant to Article III<\/u> and refers to a Eurocurrency Bid Rate Advance, a
\nEURIBOR Bid Rate Advance, an Absolute Rate Advance or an advance in substitution
\ntherefor pursuant to Section 5.01<\/u>.<\/p>\n<\/p>\n “Competitive Bid Borrowing<\/u>” means a borrowing consisting of
\nCompetitive Bid Advances (i) made on the same day by the Banks whose Competitive
\nBid Quotes in connection with a given type of auction, whether a Eurocurrency
\nAuction, EURIBOR Auction or an Absolute Rate Auction, shall have been accepted
\nby the Borrower in accordance with Section 3.06<\/u>, (ii) having the same
\nInterest Period, and (iii) being in the same currency.<\/p>\n<\/p>\n “Competitive Bid Borrowing Facility<\/u>” has the meaning assigned to that
\nterm in Section 3.01<\/u>.<\/p>\n<\/p>\n “Competitive Bid Lending Office<\/u>” means, with respect to each Bank, the
\noffice of such Bank specified as its “Competitive Bid Lending Office” opposite
\nits name on Schedule 1.02<\/u> hereto (or, if no such office is specified, its
\nDomestic Lending Office) or such other office of such Bank as such Bank may from
\ntime to time specify to the Borrower and the Administrative Agent. Any Bank may
\nfrom time to time by notice to the Borrower and the Administrative Agent
\ndesignate separate Competitive Bid Lending Offices for its Absolute Rate
\nAdvances, its Eurocurrency Bid Rate Advances and its EURIBOR Bid Rate Advances,
\nin which case all references herein to the “Competitive Bid Lending Office” of
\nsuch Bank shall be deemed to refer to any one or all of such offices, as the
\ncontext may require.<\/p>\n<\/p>\n “Competitive Bid Margin<\/u>” means (i) with respect to a Eurocurrency Bid
\nRate Advance, a margin above or below the applicable Eurocurrency Rate which is
\noffered for a Eurocurrency Bid Rate Advance, expressed as a percentage (rounded
\nto the nearest 1\/10,000 of<\/p>\n<\/p>\n 4<\/p>\n \n
\n1%) to be added to or subtracted from such Eurocurrency Rate and (ii) with
\nrespect to a EURIBOR Bid Rate Advance, a margin above or below the applicable
\nEURIBOR which is offered for a EURIBOR Rate Advance, expressed as a percentage
\n(rounded to the nearest 1\/10,000 of 1%) to be added to or subtracted from such
\nEURIBOR.<\/p>\n<\/p>\n “Competitive Bid Quote<\/u>” means a Competitive Bid Quote substantially in
\nthe form of Exhibit 3.04<\/u> hereto, completed by a Bank and delivered by
\nsuch Bank to the Administrative Agent in accordance with Section 3.04<\/u>.\n<\/p>\n<\/p>\n “Competitive Bid Quote Request<\/u>” means a Competitive Bid Quote Request
\nsubstantially in the form of Exhibit 3.02<\/u> hereto, completed by the
\nBorrower and delivered by the Borrower to the Administrative Agent in accordance
\nwith Section 3.02<\/u>.<\/p>\n<\/p>\n “Computation Date<\/u>” has the meaning assigned to that term in
\nSection 2.04(a).<\/u><\/p>\n<\/p>\n “Consolidated<\/u>” refers to the full consolidation of the accounts of the
\nBorrower and its Subsidiaries in accordance with generally accepted accounting
\nprinciples, including principles of consolidation, consistent with those applied
\nin the preparation of the financial statements referred to in Section
\n7.01(f)<\/u>.<\/p>\n<\/p>\n “Consolidated Adjusted Debt<\/u>” means, at any time, (i) all Debt
\nminus<\/u> (ii) an amount equal to all cash and cash equivalent investments of
\nthe Borrower and its Consolidated Subsidiaries.<\/p>\n<\/p>\n “Consolidated Capitalization<\/u>” means, at any time, the sum at such time
\nof: (i) the Consolidated stockholders153 equity of the Borrower and its
\nConsolidated Subsidiaries, and (ii) Consolidated Adjusted Debt of the Borrower
\nand its Consolidated Subsidiaries.<\/p>\n<\/p>\n “Consolidated Net Tangible Assets<\/u>” means the total amount of assets
\nwhich would be included on a Consolidated balance sheet of the Borrower and its
\nConsolidated Subsidiaries (and which shall reflect the deduction of applicable
\nreserves) after deducting therefrom all current liabilities of the Borrower and
\nits Consolidated Subsidiaries and all Intangible Assets.<\/p>\n<\/p>\n “Control<\/u>” means the possession, directly or indirectly, of the power
\nto direct or cause the direction of the management or policies of a Person,
\nwhether through the ability to exercise voting power, by contract or otherwise.\n<\/p>\n<\/p>\n “Convert<\/u>,” “Conversion<\/u>,” “Converting<\/u>” and
\n“Converted<\/u>” each refers to a conversion of Advances of one Type into
\nAdvances of another Type or a continuation of Advances as the same Type for an
\nadditional Interest Period, in each case pursuant to Section 2.03<\/u>.<\/p>\n<\/p>\n “Credit Ratings<\/u>” has the meaning assigned to that term in Section
\n5.04(a)<\/u>.<\/p>\n<\/p>\n “Debentures<\/u>” means long-term debt securities (without third-party
\ncredit enhancement).<\/p>\n<\/p>\n 5<\/p>\n \n
\n“Debt<\/u>” means the sum of: (i) indebtedness for borrowed money or for
\nthe deferred purchase price of property or services carried as indebtedness on
\nthe Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
\n(excluding accounts payable arising in the ordinary course of such Person153s
\nbusiness payable on terms customary in the trade), (ii) obligations of the
\nBorrower and its Consolidated Subsidiaries as lessee under leases that, in
\naccordance with generally accepted accounting principles, are recorded as
\ncapital leases, and (iii) obligations of the Borrower and its Consolidated
\nSubsidiaries under direct or indirect guaranties in respect of, and obligations
\n(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
\nassure a creditor against loss in respect of, indebtedness or obligations of
\nother parties of the kinds referred to in clauses (i)<\/u> and (ii)<\/u>
\nabove (other than Debt of any Subsidiary, to the extent such Debt is included in
\nthe calculation of Debt as a result of clause (i)<\/u> or (ii)<\/u> above)
\nin excess of $100,000,000 in the aggregate. The term “Debt” shall not include
\nthe undrawn face amount of any letter of credit issued for the account of the
\nBorrower or any of its Consolidated Subsidiaries, but shall include the
\nreimbursement obligation owing from time to time by the Borrower or any of its
\nConsolidated Subsidiaries in respect of drawings made under any letter of credit
\nin the event reimbursement is not made immediately following the applicable
\ndrawing.<\/p>\n<\/p>\n “Defaulting Bank<\/u>” means (a) any Bank that (i) has failed, within two
\n(2) Business Days of the date required to be funded or paid, to (a) fund any
\nportion of its Commitment, (b) fund any portion of its participations in Letters
\nof Credit or Advances or (c) pay over to any Recipient any other amount required
\nto be paid by it hereunder, unless, in the case of clause (a) above, such Bank
\nnotifies the Administrative Agent in writing that such failure is the result of
\nsuch Bank153s good faith determination that a condition precedent to funding
\n(specifically identified and including the particular default, if any) has not
\nbeen satisfied, (ii) has notified the Borrower or any Recipient in writing, or
\nhas made a public statement to the effect, that it does not intend or expect to
\ncomply with any of its funding obligations under this Agreement (unless such
\nwriting or public statement indicates that such position is based on such Bank153s
\ngood faith determination that a condition precedent (specifically identified and
\nincluding the particular default, if any) to funding a advance under this
\nAgreement cannot be satisfied) or generally under other agreements in which it
\ncommits to extend credit, (iii) has failed, within three (3) Business Days after
\nrequest by a Recipient, acting in good faith, to provide a certification in
\nwriting from an authorized officer of such Bank that it will comply with its
\nobligations (and is financially able to meet such obligations) to fund
\nprospective Advances and participations in then outstanding Letters of Credit
\nand Advances under this Agreement, provided<\/u> that such Bank shall cease to
\nbe a Defaulting Bank pursuant to this clause (iii)<\/u> upon such Recipient153s
\nreceipt of such certification in form and substance satisfactory to it and the
\nAdministrative Agent, (iv) has become the subject of a Bankruptcy Event, or (v)
\nan Issuing Bank has a good faith belief that such Bank has defaulted in
\nfulfilling its obligations under one or more other agreements in which such Bank
\ncommits to extend credit, unless such Issuing Bank shall have entered into
\narrangements with the Parent of such Bank or such Bank, satisfactory to such
\nIssuing Bank to defease any risk to it in respect of such Bank hereunder, or (b)
\na Bank whose Parent shall become the subject of a Bankruptcy Event.<\/p>\n<\/p>\n “Dollar Amount<\/u>” of any currency at any date means (i) the amount of
\nsuch currency if such currency is Dollars or (ii) the equivalent in Dollars of
\nthe amount of such currency if such currency is any currency other than Dollars,
\ncalculated on the basis of the rate at<\/p>\n<\/p>\n 6<\/p>\n \n
\nwhich such currency may be exchanged into Dollars at the time of
\ndetermination on such day on the Reuters Currency pages, if available, for such
\ncurrency. In the event that such rate does not appear on any Reuters Currency
\npages, the exchange rate shall be determined by reference to such other publicly
\navailable service for displaying exchange rates as may be agreed upon by the
\nAdministrative Agent and the Borrower, or, in the absence of such an agreement,
\nsuch exchange rate shall instead be the arithmetic average of the spot rates of
\nexchange of the Administrative Agent in the market where its foreign currency
\nexchange operations in respect of such currency are then being conducted, at or
\nabout such time as the Administrative Agent shall elect after determining that
\nsuch rates shall be the basis for determining the exchange rate, on such date
\nfor the purchase of Dollars for delivery two (2) Business Days later;
\nprovided<\/u> that if at the time of any such determination, for any reason,
\nno such spot rate is being quoted, the Administrative Agent may use any
\nreasonable method it deems appropriate to determine such rate, and such
\ndetermination shall be prima<\/u> facie<\/u> evidence thereof.<\/p>\n<\/p>\n “Dollars<\/u>” and “$<\/u>” means the lawful currency of the United
\nStates of America.<\/p>\n<\/p>\n “Domestic Business Day<\/u>” means a day (other than Saturday or Sunday) of
\nthe year on which banks are not required or authorized to close in New York City
\nor Chicago, Illinois and are generally open for the conduct of substantially all
\nof their commercial lending activities and interbank wire transfers can be made
\non the Fedwire system.<\/p>\n<\/p>\n “Domestic Lending Office<\/u>” means, with respect to each Bank, the office
\nof such Bank specified as its “Domestic Lending Office” opposite its name on
\nSchedule 1.02<\/u> hereto or such other office of such Bank as such Bank may
\nfrom time to time specify to the Borrower and the Administrative Agent.<\/p>\n<\/p>\n “Eligible Currency<\/u>” means any currency other than Dollars (i) that is
\nreadily available, (ii) that is freely traded, (iii) in which deposits are
\ncustomarily offered to banks in the Brussels euro-zone interbank market or
\nLondon interbank market, as applicable, (iv) which is convertible into Dollars
\nin the international interbank market and (v) as to which a Dollar Amount may be
\nreadily calculated. If, after the designation by the Banks of any currency as an
\nAgreed Currency, (x) currency control or other exchange regulations are imposed
\nin the country in which such currency is issued with the result that different
\ntypes of such currency are introduced, (y) such currency is, in the
\ndetermination of the Administrative Agent, no longer readily available or freely
\ntraded or (z) in the determination of the Administrative Agent, a Dollar Amount
\nof such currency is not readily calculable, the Administrative Agent shall
\npromptly notify the Banks and the Borrower, and such currency shall no longer be
\nan Agreed Currency until such time as all of the Banks agree to reinstate such
\ncurrency as an Agreed Currency and promptly, but in any event within five (5)
\nBusiness Days of receipt of such notice from the Administrative Agent, the
\nBorrower shall repay all Advances in such affected currency or convert such
\nAdvances into Advances in Dollars or another Agreed Currency, subject to the
\nother terms set forth in Article II<\/u> and Article III<\/u>.<\/p>\n<\/p>\n “Environmental Laws<\/u>” means federal, state, local and foreign laws,
\nrules and regulations relating to the release, emission, disposal, storage and
\nrelated handling of waste materials, pollutants and hazardous substances.<\/p>\n<\/p>\n 7<\/p>\n \n
\n“Equity Interests<\/u>” means shares of capital stock, partnership
\ninterests, membership interests in a limited liability company, beneficial
\ninterests in a trust or other equity interests in a Person, and any and all
\nwarrants, rights or options to purchase any of the foregoing.<\/p>\n<\/p>\n “ERISA<\/u>” means the Employee Retirement Income Security Act of 1974, as
\namended from time to time, and any successor statute of similar import, together
\nwith the regulations thereunder, in each case as in effect from time to time.
\nReferences to sections of ERISA also refer to any successor sections.<\/p>\n<\/p>\n “EURIBOR<\/u>” means, with respect to any EURIBOR Advance for the relevant
\nInterest Period, the interest rate per annum equal to the rate determined by the
\nAdministrative Agent to be the rate at which deposits in Euro appear on the
\nReuters Screen EURIBOR01 as of 11:00 a.m., Brussels time, on the date that is
\ntwo (2) TARGET Settlement Days (or, if such date is not a EURIBOR Business Day,
\nthe first day preceding such date that is a EURIBOR Business Day) preceding the
\nfirst day of such Interest Period, and having a maturity equal to such Interest
\nPeriod; provided<\/u>, that if such rate does not appear on the Reuters Screen
\nEURIBOR01, then EURIBOR shall be an interest rate per annum equal to the
\narithmetic mean determined by the Administrative Agent (rounded to the nearest.
\n01%) of the rates per annum at which deposits in Euro are offered by the London
\nbranches of JPMorgan Chase Bank, National Association, Bank of America, N.A. and
\nCitibank, N.A. at approximately 11:00 a.m., Brussels time, on the day that is
\ntwo (2) TARGET Settlement Days (or, if such date is not a EURIBOR Business Day,
\nthe first day preceding such date that is a EURIBOR Business Day) preceding the
\nfirst day of such Interest Period to other leading banks in the euro-zone
\ninterbank market at which deposits in Euro are offered, and having a maturity
\nequal to such Interest Period. The Administrative Agent will deliver a copy of
\nsuch Reuters Screen or its calculation of EURIBOR, as applicable, to the
\nBorrower within one (1) EURIBOR Business Day of the beginning of the relevant
\nInterest Period; provided<\/u> that the failure of the Administrative Agent to
\nprovide such copy of the Reuters Screen or such calculation of EURIBOR shall in
\nno way limit or modify the obligations of the Borrower under this Agreement.\n<\/p>\n<\/p>\n “EURIBOR Advance<\/u>” means any EURIBOR Rate Advance or EURIBOR Bid Rate
\nAdvance for any Advance in Euro.<\/p>\n<\/p>\n “EURIBOR Auction<\/u>” means a solicitation of Competitive Bid Quotes
\nsetting forth Competitive Bid Margins in relation to the applicable EURIBOR for
\nEURIBOR Bid Rate Advances to be extended pursuant to Article III<\/u>.<\/p>\n<\/p>\n “EURIBOR Bid Rate<\/u>” means, with respect to a EURIBOR Bid Rate Advance
\nmade by a given Bank for the relevant Interest Period, the sum of (a) the
\nEURIBOR applicable thereto and (b) the Competitive Bid Margin offered by such
\nBank and accepted by the Borrower with respect to such EURIBOR Bid Rate Advance.\n<\/p>\n<\/p>\n “EURIBOR Bid Rate Advance<\/u>” means an Advance made or to be made by a
\nBank pursuant to Article III<\/u> as a EURIBOR Bid Rate Advance in accordance
\nwith the applicable Notice of Competitive Bid Borrowing. Each EURIBOR Bid Rate
\nAdvance shall bear interest at a EURIBOR Bid Rate as provided in Section
\n5.07(d)<\/u>.<\/p>\n<\/p>\n 8<\/p>\n \n
\n“EURIBOR Business Day<\/u>” means any Domestic Business Day on which
\ndealings are carried on in the Brussels euro-zone interbank market and the
\nLondon interbank market and which is a TARGET Settlement Day.<\/p>\n<\/p>\n “EURIBOR Lending Office<\/u>” means, with respect to each Bank, the office
\nof such Bank specified as its “EURIBOR Lending Office” opposite its name on
\nSchedule 1.02<\/u> hereto (or if no such office is specified, its Domestic
\nLending Office) or such other office of such Bank as such Bank may from time to
\ntime specify to the Borrower and the Administrative Agent.<\/p>\n<\/p>\n “EURIBOR Margin<\/u>” has the meaning assigned to that term in Section
\n5.07(c)<\/u>.<\/p>\n<\/p>\n “EURIBOR Rate Advance<\/u>” means (i) an Advance made or to be made by a
\nBank pursuant to Section 2.01<\/u> as a EURIBOR Rate Advance in accordance
\nwith the applicable Notice of Syndicated Borrowing and (ii) any Advance
\nconverted into a EURIBOR Rate Advance in accordance with Section 2.03<\/u>.
\nEach EURIBOR Rate Advance shall bear interest as provided in Section
\n5.07(c)<\/u>.<\/p>\n<\/p>\n “Euro<\/u>” and\/or “EUR<\/u>” means the euro referred to in Council
\nRegulation (EC) No. 1103\/97, dated June 17, 1997, passed by the Council of the
\nEuropean Union, or, if different, the then lawful currency of the member states
\nof the European Union that participate in the third stage of Economic and
\nMonetary Union.<\/p>\n<\/p>\n “Eurocurrency Advance<\/u>” means any Eurocurrency Rate Advance or
\nEurocurrency Bid Rate Advance for any Advance in any Agreed Currency other than
\nEuro.<\/p>\n<\/p>\n “Eurocurrency Auction<\/u>” means a solicitation of Competitive Bid Quotes
\nsetting forth Competitive Bid Margins in relation to the applicable Eurocurrency
\nRate for Eurocurrency Bid Rate Advances to be extended pursuant to Article
\nIII<\/u>.<\/p>\n<\/p>\n “Eurocurrency Bid Rate<\/u>” means, with respect to a Eurocurrency Bid Rate
\nAdvance made by a given Bank for the relevant Interest Period, the sum of (a)
\nthe Eurocurrency Rate applicable thereto and (b) the Competitive Bid Margin
\noffered by such Bank and accepted by the Borrower with respect to such
\nEurocurrency Bid Rate Advance.<\/p>\n<\/p>\n “Eurocurrency Bid Rate Advance<\/u>” means an Advance made or to be made by
\na Bank pursuant to Article III<\/u> as a Eurocurrency Bid Rate Advance in
\naccordance with the applicable Notice of Competitive Bid Borrowing. Each
\nEurocurrency Bid Rate Advance shall bear interest at a Eurocurrency Bid Rate as
\nprovided in Section 5.07(d<\/u>).<\/p>\n<\/p>\n “Eurocurrency Business Day<\/u>” means any Domestic Business Day on which
\ndealings are carried on in the London interbank market.<\/p>\n<\/p>\n “Eurocurrency Lending Office<\/u>” means, with respect to each Bank, the
\noffice of such Bank specified as its “Eurocurrency Lending Office” opposite its
\nname on Schedule 1.02<\/u> hereto (or, if no such office is specified, its
\nDomestic Lending Office) or such other office of such Bank as such Bank may from
\ntime to time specify to the Borrower and the Administrative Agent.<\/p>\n<\/p>\n 9<\/p>\n \n
\n“Eurocurrency Liabilities<\/u>” has the meaning assigned to that term in
\nRegulation D of the Board of Governors of the Federal Reserve System, as in
\neffect from time to time.<\/p>\n<\/p>\n “Eurocurrency Margin<\/u>” has the meaning assigned to that term in
\nSection 5.07(b)<\/u>.<\/p>\n<\/p>\n “Eurocurrency Rate<\/u>” means, with respect to any Eurocurrency Advance in
\nan Agreed Currency (other than Euro) for the relevant Interest Period, the
\napplicable British Bankers153 Association Interest Settlement Rate for deposits in
\nthe applicable Agreed Currency as reported by any generally recognized financial
\ninformation service as of 11:00 a.m. (London time) two (2) Eurocurrency Business
\nDays prior to the first day of such Interest Period, and having a maturity equal
\nto such Interest Period; provided<\/u>, that, if no such British Bankers153
\nAssociation Interest Settlement Rate is available to the Administrative Agent,
\nthe applicable Eurocurrency Rate for the relevant Interest Period shall instead
\nbe the rate determined by the Administrative Agent to be the rate at which
\nJPMorgan Chase or one of its Affiliate banks offers to place deposits in an
\nAgreed Currency (other than Euro) with first-class banks in the London interbank
\nmarket at approximately 11:00 a.m. (London time) two (2) Eurocurrency Business
\nDays prior to the first day of such Interest Period, and having a maturity equal
\nto such Interest Period; provided<\/u>, further<\/u>, that the
\nAdministrative shall deliver a copy of such report or its calculation of
\nEurocurrency Rate, as applicable, to the Borrower within one (1) Eurocurrency
\nBusiness Day of the beginning of such Interest Period; provided<\/u> that the
\nfailure of the Administrative Agent to provide a copy of such report or
\ncalculation shall in no way limit or modify the obligations of the Borrower
\nunder this Agreement.<\/p>\n<\/p>\n “Eurocurrency Rate Advance<\/u>” means (i) an Advance made or to be made by
\na Bank pursuant to Section 2.01<\/u> as a Eurocurrency Rate Advance in
\naccordance with the applicable Notice of Syndicated Borrowing and (ii) any
\nAdvance Converted into a Eurocurrency Rate Advance in accordance with
\nSection 2.03<\/u>. Each Eurocurrency Rate Advance shall bear interest as
\nprovided in Section 5.07(b)<\/u>.<\/p>\n<\/p>\n “Eurocurrency Rate Reserve Percentage<\/u>” of any Bank for the Interest
\nPeriod for any Eurocurrency Advance or EURIBOR Advance, as applicable, means the
\nmaximum reserve percentage applicable during such Interest Period (or, if more
\nthan one such percentage shall be so applicable, the daily average of such
\npercentages for those days in such Interest Period during which any such
\npercentage shall be so applicable) under regulations issued from time to time by
\nthe Board of Governors of the Federal Reserve System for determining the reserve
\nrequirement (including, without limitation, any emergency, supplemental or other
\nmarginal reserve requirement and taking into account any transitional
\nadjustments or other scheduled changes in reserve requirements during such
\nInterest Period) for such Bank with respect to liabilities or assets consisting
\nof or including Eurocurrency Liabilities having a term equal to such Interest
\nPeriod.<\/p>\n<\/p>\n “Events of Default<\/u>” has the meaning assigned to that term in
\nSection 9.01<\/u>.<\/p>\n<\/p>\n “Exchange Act<\/u>” means the Securities Exchange Act of 1934, as amended.\n<\/p>\n<\/p>\n 10<\/p>\n \n
\n“Existing Credit Agreement<\/u>” means the Five-Year Credit Agreement,
\ndated as of December 20, 2006, among the Borrower, the financial institutions
\nparties thereto and JPMorgan Chase, as administrative agent.<\/p>\n<\/p>\n “Existing Letters of Credit<\/u>” means the Letters of Credit identified on
\nSchedule 1.03<\/u> hereto.<\/p>\n<\/p>\n “Facility Usage<\/u>” means, at any time, an amount equal to the sum of (i)
\nthe aggregate principal amount of all Syndicated Advances denominated in Dollars
\nand the Dollar Amount of all Syndicated Advances denominated in Agreed
\nCurrencies other than Dollars outstanding at such time, (ii) the aggregate
\nprincipal amount of all Competitive Bid Advances denominated in Dollars and the
\nDollar Amount of all Competitive Bid Advances denominated in Agreed Currencies
\nother than Dollars outstanding at such time and (iii) the aggregate amount of
\nall L\/C Obligations outstanding at such time.<\/p>\n<\/p>\n “FATCA<\/u>” means Section 1471 through 1474 of the Code, including any
\nregulations promulgated thereunder or official interpretations thereof.<\/p>\n<\/p>\n “Federal Funds Rate<\/u>” means, for any day, the weighted average (rounded
\nupwards, if necessary, to the next 1\/100 of 1%) of the rates on overnight
\nFederal funds transactions with members of the Federal Reserve System arranged
\nby Federal funds brokers, as published on the next succeeding Domestic Business
\nDay by the Federal Reserve Bank of New York, or, if such rate is not so
\npublished for any day that is a Domestic Business Day, the average (rounded
\nupwards, if necessary, to the next 1\/100 of 1%) of the quotations for such day
\nfor such transactions received by the Administrative Agent from three (3)
\nFederal funds brokers of recognized standing selected by it. The Administrative
\nAgent shall deliver to the Borrower a copy of such publication or average
\nquotation, as applicable, within one (1) Business Day of such day;
\nprovided<\/u> that the failure of the Administrative Agent to provide such
\npublication or such average quotation shall in no way limit or modify the
\nobligations of the Borrower under this Agreement.<\/p>\n<\/p>\n “First Borrowing<\/u>” means the earlier to occur of (i) the initial
\nBorrowing made by the Borrower hereunder or (ii) the initial Letter of Credit
\nissued by an Issuing Bank hereunder, including, without limitation, the deemed
\nissuance of the Existing Letters of Credit as Letters of Credit hereunder on the
\nClosing Date.<\/p>\n<\/p>\n “Fitch<\/u>” means Fitch, Inc., or its successor.<\/p>\n<\/p>\n “Fixed Rate Advances<\/u>” means Eurocurrency Rate Advances, EURIBOR Rate
\nAdvances or Competitive Bid Advances (excluding Competitive Bid Advances bearing
\ninterest at the Base Rate pursuant to Section 5.01<\/u>) or any combination of
\nthe foregoing.<\/p>\n<\/p>\n “Fund<\/u>” means any Person (other than a natural person) that is (or will
\nbe) engaged in making, purchasing, holding or otherwise investing in commercial
\nloans and similar extensions of credit in the ordinary course of its business.\n<\/p>\n<\/p>\n “Governmental Acts<\/u>” has the meaning assigned to that term in
\nSection 4.09(a)<\/u>.<\/p>\n<\/p>\n 11<\/p>\n \n
\n“Governmental Authority<\/u>” means any nation or government, any federal,
\nstate, local or other political subdivision thereof and any entity exercising
\nexecutive, legislative, judicial, regulatory or administrative functions of or
\npertaining to government.<\/p>\n<\/p>\n “Governmental Entity<\/u>” has the meaning assigned to that term in
\nSection 8.02(a)(xvii)<\/u>.<\/p>\n<\/p>\n “Intangible Assets<\/u>” means all assets of the Borrower and its
\nConsolidated Subsidiaries which are treated as intangibles in conformity with
\ngenerally accepted accounting principles on the Consolidated balance sheet of
\nthe Borrower and its Consolidated Subsidiaries.<\/p>\n<\/p>\n “Interest Period<\/u>” means, for each Advance comprising part of the same
\nBorrowing, the period commencing on the date of such Advance (or, in the case of
\nany Syndicated Borrowing, on the effective date of Conversion thereof pursuant
\nto Section 2.03<\/u>) and ending on the last day of the period selected by the
\nBorrower pursuant to the provisions below. The duration of each such Interest
\nPeriod shall be (a) in the case of a Eurocurrency Rate Advance or a EURIBOR Rate
\nAdvance, one (1), two (2) , three (3) or six (6) months, (b) in the case of a
\nEurocurrency Bid Rate Advance or a EURIBOR Bid Rate Advance, one (1), two (2),
\nthree (3) or six (6) months, and (c) in the case of an Absolute Rate Advance, a
\nnumber of days not to exceed 180 days, in each case as the Borrower may select
\npursuant to Section 2.02<\/u>, 2.03<\/u> or 3.02<\/u>, as applicable;
\nprovided<\/u>, that:<\/p>\n<\/p>\n (i) The duration of any Interest Period which would otherwise end after the
\nTermination Date shall end on the Termination Date;<\/p>\n<\/p>\n (ii) Interest Periods commencing on the same day for Advances comprising the
\nsame Borrowing shall be of the same duration;<\/p>\n<\/p>\n (iii) Whenever the last day of any Interest Period would otherwise occur on a
\nday other than a Business Day, the last day of such Interest Period shall be
\nextended to occur on the next succeeding Business Day, unless, in the case of
\nany Interest Period for a Eurocurrency Advance or a EURIBOR Advance, such
\nextension would cause the last day of such Interest Period to occur in the next
\nfollowing calendar month, in which case the last day of such Interest Period
\nshall occur on the immediately preceding Business Day; and<\/p>\n<\/p>\n (iv) If an Interest Period for a Eurocurrency Advance or a EURIBOR Advance
\nbegins on the last Business Day of a calendar month (or on a day for which there
\nis no numerically corresponding day in the calendar month at the end of such
\nInterest Period), such Interest Period shall end on the last Business Day of a
\ncalendar month.<\/p>\n<\/p>\n “Issuing Banks<\/u>” means any of JPMorgan Chase, Bank of America, Citibank
\nand any other Bank which, at the Borrower153s request, agrees, in such other
\nBank153s sole discretion, to become an Issuing Bank for the purpose of issuing
\nLetters of Credit under this Agreement, and their respective successors and
\nassigns.<\/p>\n<\/p>\n 12<\/p>\n \n
\n“JPMorgan Chase<\/u>” means JPMorgan Chase Bank, National Association, a
\nnational banking association having its principal office in New York, New York,
\nin its individual capacity, and its successors.<\/p>\n<\/p>\n “L\/C Application<\/u>” means a letter of credit application and
\nreimbursement agreement in such form as the applicable Issuing Bank may from
\ntime to time employ in the ordinary course of business.<\/p>\n<\/p>\n “L\/C Draft<\/u>” means a draft drawn on an Issuing Bank pursuant to a
\nLetter of Credit.<\/p>\n<\/p>\n “L\/C Interest<\/u>” has the meaning assigned to such term in Section
\n4.05<\/u>.<\/p>\n<\/p>\n “L\/C Obligations<\/u>” means, without duplication, an amount equal to the
\nsum of (i) the aggregate of the amount then available for drawing under each of
\nthe Letters of Credit, (ii) the face amount of all outstanding L\/C Drafts
\ncorresponding to the Letters of Credit, which L\/C Drafts have been accepted by
\nthe applicable Issuing Bank, (iii) the aggregate outstanding amount of all
\nReimbursement Obligations at such time and (iv) the aggregate face amount of all
\nLetters of Credit requested by the Borrower but not yet issued (unless the
\nrequest for an unissued Letter of Credit has been denied). The L\/C Obligations
\nof any Bank at any time shall be such Bank153s pro rata share of the Aggregate
\nCommitments multiplied by the aggregate L\/C Obligations at such time.<\/p>\n<\/p>\n “LIBOR Market Rate Spread<\/u>” means, for any Advance, at any time, the
\nthirty (30) day moving average of the Borrower153s interpolated four-year credit
\ndefault swap mid-rate spread (as provided by Markit Group Limited or another
\nsimilar financial services company selected by the Administrative Agent and
\napproved by the Borrower (which approval shall not be unreasonably withheld or
\ndelayed)) for the four-year period beginning on the date on which the LIBOR
\nMarket Rate Spread has most recently been set for such Advance; provided<\/u>
\nthat the minimum and maximum LIBOR Market Rate Spread shall be as set forth in
\nSection 5.07<\/u>. The LIBOR Market Rate Spread will in each case be (a)
\ndetermined by the Administrative Agent by reference to the thirty (30) day
\nmoving average of the Borrower153s interpolated four-year credit default swap
\nmid-rate spread as provided on the Markit Group Limited (or another similar
\nfinancial services company selected by the Administrative Agent and approved by
\nthe Borrower (which approval shall not be unreasonably withheld or delayed)
\nwebsite for such four-year period, and (b) set for each Eurocurrency Advance
\nand\/or each EURIBOR Rate Advance at the time that the initial Eurocurrency Rate
\nor EURIBOR Rate applicable to such Eurocurrency Advance or EURIBOR Rate Advance,
\nas the case may be, is set (which is one (1) day after the related Notice of
\nBorrowing) and at the beginning of each subsequent applicable Interest Period;
\nprovided<\/u> that for each Eurocurrency Advance or EURIBOR Rate Advance
\nhaving an Interest Period longer than three (3) months, the LIBOR Market Rate
\nSpread shall be reset as of the last day of each three-month interval during
\nsuch Interest Period. The Administrative Agent will deliver to the Borrower a
\ncopy of the relevant webpage within one (1) Business Day of the beginning of the
\nrelevant Interest Period; provided<\/u> that the failure of the Administrative
\nAgent to deliver such copy of the webpage shall in no way limit or modify the
\nobligations of the Borrower under this Agreement.<\/p>\n<\/p>\n 13<\/p>\n \n
\n“Letter of Credit<\/u>” means any letter of credit issued by an Issuing
\nBank pursuant to Section 4.01<\/u>.<\/p>\n<\/p>\n “Local Time<\/u>” means Chicago time, in the case of notices or payments
\nwith respect to Borrowings in Dollars, and London time, in the case of notices
\nor payments with respect to Borrowings in Agreed Currencies other than Dollars.\n<\/p>\n<\/p>\n “Majority Banks<\/u>” means at any time Banks having more than fifty
\npercent (50%) of the then aggregate amount of the Commitments or, if the
\nCommitments have been terminated, holding more than fifty percent (50%) of the
\naggregate unpaid principal amount of Advances and L\/C Obligations then
\noutstanding under this Agreement. The Commitments, Advances and L\/C Obligations
\nof any Defaulting Bank shall be disregarded in determining the Majority Banks at
\nany time.<\/p>\n<\/p>\n “Margin Regulations<\/u>” has the meaning assigned to that term in
\nSection 8.01(g)<\/u>.<\/p>\n<\/p>\n “Margin Stock<\/u>” has the meaning assigned to that term under Regulation
\nU issued by the Board of Governors of the Federal Reserve System.<\/p>\n<\/p>\n “Material Subsidiary<\/u>” means any of (i) Baxter Healthcare Corporation,
\na Delaware corporation, (ii) Baxter World Trade Corporation, a Delaware
\ncorporation, or (iii) any other Subsidiary of the Borrower that would be a
\n“significant subsidiary” of the Borrower within the meaning of Rule 1-02(w)(2)
\nunder Regulation S-X promulgated by the SEC (17 C.F.R. 210.1-02(w)(2));
\nprovided<\/u> that the reference therein to “10 percent of the total assets of
\nthe registrant and its subsidiaries” shall be deemed for purposes of this
\ndefinition to read as “20 percent of the total assets of the registrant and its
\nsubsidiaries.”<\/p>\n<\/p>\n “Moody153s<\/u>” means Moody153s Investors Service, Inc., or its successor.\n<\/p>\n<\/p>\n “Multiemployer Plan<\/u>” means any employee benefit plan of the type
\ndescribed in Section 4001(a)(3) of ERISA, to which the Borrower or any Material
\nSubsidiary makes or is obligated to make contributions.<\/p>\n<\/p>\n “Non-Consenting Bank<\/u>” means any Bank that does not approve any
\nconsent, waiver or amendment that (i) requires the approval of all affected
\nBanks in accordance with the terms of Section 11.01<\/u> and (ii) has been
\napproved by the Majority Banks.<\/p>\n<\/p>\n “Non-U.S. Bank<\/u>” means a Bank that is not a U.S. Person.<\/p>\n<\/p>\n “Note<\/u>” has the meaning assigned to that term in Section
\n5.16(d)<\/u>.<\/p>\n<\/p>\n “Notice of Borrowing<\/u>” means a Notice of Competitive Bid Borrowing
\nand\/or a Notice of Syndicated Borrowing, as the context requires.<\/p>\n<\/p>\n “Notice of Competitive Bid Borrowing<\/u>” has the meaning assigned to that
\nterm in Section 3.06<\/u>.<\/p>\n<\/p>\n 14<\/p>\n \n
\n“Notice of Interest Rate Election<\/u>” has the meaning assigned to that
\nterm in Section 2.03<\/u>.<\/p>\n<\/p>\n “Notice of Syndicated Borrowing<\/u>” has the meaning assigned to that term
\nin Section 2.02<\/u>.<\/p>\n<\/p>\n “Original Currency<\/u>” has the meaning assigned to that term in
\nSection 5.14(b)<\/u>.<\/p>\n<\/p>\n “Other Taxes<\/u>” has the meaning assigned to that term in Section
\n5.15(b)<\/u>.<\/p>\n<\/p>\n “Parent<\/u>” means, with respect to any Bank, any Person as to which such
\nBank is, directly or indirectly, a subsidiary.<\/p>\n<\/p>\n “Person<\/u>” means an individual, a corporation, a partnership, an
\nassociation, a trust or any other entity or organization, including a government
\nor political subdivision or an agency or instrumentality thereof.<\/p>\n<\/p>\n “PBGC<\/u>” means the Pension Benefit Guaranty Corporation and any entity
\nsucceeding to any or all of its functions under ERISA.<\/p>\n<\/p>\n “Plan<\/u>” means any “employee pension benefit plan” (as such term is
\ndefined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
\nsubject to Title IV of ERISA and is sponsored or maintained by the Borrower or
\nany Material Subsidiary or to which the Borrower or any Material Subsidiary
\ncontributes or has an obligation to contribute.<\/p>\n<\/p>\n “Prime Rate<\/u>” means a rate per annum equal to the prime rate of
\ninterest announced from time to time by JPMorgan Chase (which is not necessarily
\nthe lowest rate charged to any customer) as its prime rate in effect at its
\nprincipal office in New York City, changing when and as said prime rate changes.\n<\/p>\n<\/p>\n “Receivable<\/u>” has the meaning assigned to that term in Section
\n8.02(a)(xii)<\/u>.<\/p>\n<\/p>\n “Recipient<\/u>” means, as applicable, (a) the Administrative Agent, (b)
\nany Bank and (c) the Issuing Bank.<\/p>\n<\/p>\n “Register<\/u>” has the meaning assigned to that term in Section
\n11.06(e)<\/u>.<\/p>\n<\/p>\n “Reimbursement Obligation<\/u>” has the meaning assigned to that term in
\nSection 4.06<\/u>.<\/p>\n<\/p>\n “S&P<\/u>” means Standard & Poor153s Ratings Services, a division of
\nthe McGraw-Hill Companies, Inc., or its successor.<\/p>\n<\/p>\n “SEC<\/u>” means the United States Securities and Exchange Commission or
\nany successor thereto.<\/p>\n<\/p>\n 15<\/p>\n \n
\n“Secured Debt<\/u>” means the amount of Debt or other obligation or
\nliability of the Borrower or any of its Material Subsidiaries the payment of
\nwhich is secured by a Security Interest.<\/p>\n<\/p>\n “Security Interest<\/u>” means any lien, security interest, mortgage or
\nother charge or encumbrance of any kind, title retention device, pledge or any
\nother type of preferential arrangement, upon or with respect to any property of
\nthe Borrower or of any Material Subsidiary, whether now owned or hereafter
\nacquired.<\/p>\n<\/p>\n “Special Notice<\/u>” has the meaning assigned to that term in Section
\n5.18(a)<\/u>.<\/p>\n<\/p>\n “Specified Currency<\/u>” has the meaning assigned to that term in
\nSection 11.13<\/u>.<\/p>\n<\/p>\n “Subsidiary<\/u>” means any entity with respect to which the Borrower alone
\nowns, the Borrower and one or more Subsidiaries together own, or the Borrower
\nand any Person controlling the Borrower together own, in each such case directly
\nor indirectly, capital stock (or the equivalent equity interest) having ordinary
\nvoting power to elect a majority of the members of the Board of Directors of
\nsuch corporation (or, in the case of a partnership or joint venture, having the
\nmajority interest in the capital or profits of such entity).<\/p>\n<\/p>\n “Successor Bank<\/u>” has the meaning assigned to that term in Section
\n5.18(b)<\/u>.<\/p>\n<\/p>\n “Syndicated Advance<\/u>” means an advance by a Bank to the Borrower (i)
\npursuant to Section 2.02<\/u>, as the same may be converted or continued from
\ntime to time pursuant to Section 2.03<\/u> or (ii) pursuant to Section
\n4.06<\/u>. At any time, depending upon the interest rate selected therefor or
\notherwise applicable thereto in accordance with Sections 2.03<\/u> and
\n5.01<\/u>, a Syndicated Advance shall be a Base Rate Advance, a Eurocurrency
\nRate Advance or a EURIBOR Rate Advance.<\/p>\n<\/p>\n “Syndicated Borrowing<\/u>” means a borrowing consisting of Syndicated
\nAdvances of the same Type and in the same currency, made on the same day by the
\nBanks, as the same may be converted or continued from time to time pursuant to
\nSection 2.03<\/u> and after giving effect to any subsequent Conversion in
\nconnection with which a single Syndicated Borrowing may have been divided into
\nseveral Syndicated Borrowings or several Syndicated Borrowings may have been
\ncombined (in whole or in part) into a single Syndicated Borrowing. An Advance
\nsubstituted, pursuant to Section 5.01<\/u>, for a Syndicated Advance made in
\nconnection with any Syndicated Borrowing shall continue to comprise a part of
\nsuch Syndicated Borrowing with the same effect as if such substituted Advance
\nwere an Advance of the Type requested in the applicable Notice of Syndicated
\nBorrowing or Notice of Interest Rate Election.<\/p>\n<\/p>\n “Syndicated Borrowing Facility<\/u>” has the meaning assigned to that term
\nin Section 2.01<\/u>.<\/p>\n<\/p>\n “Syndicated Reduction<\/u>” means, with respect to any Bank at any time,
\nthe temporary reduction in such Bank153s Available Commitment existing at such
\ntime as a result of clause (ii)<\/u> of the definition of Available Commitment
\nand, with respect to all Banks, the aggregate amount of such reductions existing
\nat such time.<\/p>\n<\/p>\n 16<\/p>\n \n
\n“Syndication Agents<\/u>” means Bank of America, N.A. and Citibank , N.A.,
\nin their capacity as Syndication Agents.<\/p>\n<\/p>\n “TARGET Settlement Day<\/u>” means any day on which the Trans-European
\nAutomated Real-Time Gross Settlement Express Transfer (TARGET) System (or any
\nsuccessor settlement system) is open.<\/p>\n<\/p>\n “Taxes<\/u>” has the meaning assigned to that term in Section
\n5.15(a)<\/u>.<\/p>\n<\/p>\n “TB Advance<\/u>” has the meaning assigned to that term in Section
\n5.18(c)<\/u>.<\/p>\n<\/p>\n “Terminated Bank<\/u>” has the meaning assigned to that term in Section
\n5.18(b)<\/u>.<\/p>\n<\/p>\n “Termination Date<\/u>” means, the earlier of (i) June 17, 2015, and (ii)
\nthe date on which the Commitments shall have been reduced to zero or terminated
\nin whole pursuant to the terms hereof.<\/p>\n<\/p>\n “Termination Notice<\/u>” has the meaning assigned to that term in
\nSection 5.18(b)<\/u>.<\/p>\n<\/p>\n “Type<\/u>” of Advance means (i) in the case of Syndicated Advances,
\nEurocurrency Rate Advances, EURIBOR Rate Advances or Base Rate Advances and (ii)
\nin the case of Competitive Bid Advances, Eurocurrency Bid Rate Advances, EURIBOR
\nBid Rate Advances or Absolute Rate Advances or any Type of Advance described in
\nclause (i)<\/u> which shall, pursuant to Section 5.01<\/u>, be substituted
\ntherefor.<\/p>\n<\/p>\n “Unfunded Liability<\/u>” means, in the case of a Plan, the amount, if any,
\nby which the present value of all vested benefits accrued to the date of
\ndetermination under such Plan exceeds the fair market actuarial value of all
\nassets of such Plan allocable to such benefits as of such date, calculated as of
\nthe most recent valuation date for such Plan by the Plan153s enrolled actuary
\nusing the actuarial assumptions used to calculate the Plan153s minimum funding
\nobligation under ERISA.<\/p>\n<\/p>\n “Unmatured Event of Default<\/u>” means an event which would constitute an
\nEvent of Default but for the requirement that notice be given or time elapse or
\nboth.<\/p>\n<\/p>\n “U.S. Person<\/u>” means a “United States person” within the meaning of
\nSection 7701(a)(30) of the Code.<\/p>\n<\/p>\n SECTION 1.02. Computation of Time Periods<\/u>. In this Agreement, when
\ncomputing periods of time from a specified date to a later specified date, the
\nword “from” means “from and including” and the words “to” and “until” each mean
\n“to but excluding.”<\/p>\n<\/p>\n SECTION 1.03. Accounting Terms and Principles<\/u>. All accounting terms
\nused herein shall be interpreted, all accounting determinations hereunder shall
\nbe made, and all financial statements required to be delivered hereunder shall
\nbe prepared in accordance with generally accepted accounting principles as in
\neffect from time to time, applied on a basis consistent (except for changes
\nconcurred in by the Borrower153s independent accountants or, in the case of the
\nfinancial statements required to be delivered pursuant to Section
\n8.01(f)(i)<\/u>, as<\/p>\n<\/p>\n 17<\/p>\n \n
\ndetermined by the Borrower to be required in accordance with then existing
\ngenerally accepted accounting principles) with the December 31, 2010 audited
\nConsolidated financial statements of the Borrower and its Consolidated
\nSubsidiaries.<\/p>\n<\/p>\n ARTICLE II<\/p>\n \n THE SYNDICATED BORROWING FACILITY<\/p>\n \n SECTION 2.01. The Syndicated Borrowing Facility<\/u>. Each Bank severally
\nagrees, on the terms and conditions provided herein, to make Syndicated Advances
\ndenominated in Agreed Currencies to the Borrower from time to time on any
\nBusiness Day during the period from the date hereof to the Termination Date in
\nan aggregate Dollar Amount not to exceed at any time outstanding the amount of
\nsuch Bank153s Available Commitment (the “Syndicated Borrowing Facility<\/u>“).
\nSubject to Section 5.01<\/u>, each Syndicated Borrowing shall be in an
\naggregate amount not less than $25,000,000 (and in integral multiples of
\n$5,000,000 in excess thereof) (or the Approximate Dollar Amounts thereof if such
\nSyndicated Advances are denominated in Agreed Currencies other than Dollars),
\nshall be made on the same day from the Banks ratably according to their
\nrespective Commitments and shall consist of Syndicated Advances of the same
\nType. Within the limits of each Bank153s Available Commitment, the Borrower may
\nborrow Syndicated Advances under this Section 2.01<\/u>, maintain Syndicated
\nAdvances outstanding by Converting such Syndicated Advances pursuant to
\nSection 2.03<\/u>, or prepay Syndicated Advances pursuant to Section
\n5.12<\/u>, and re-borrow Syndicated Advances under this Section 2.01<\/u>. The
\nAggregate Commitments to lend hereunder shall expire on the Termination Date.\n<\/p>\n<\/p>\n SECTION 2.02. Making the Syndicated Advances<\/u>. Each Syndicated
\nBorrowing shall be requested by facsimile notice given by the Borrower to the
\nAdministrative Agent not later than (i) 10:00 a.m. (Local Time) three (3)
\nBusiness Days (or with respect to Agreed Currencies other than Dollars, four (4)
\nBusiness Days) prior to the proposed Borrowing Date, in the case of a Borrowing
\ncomprised of Eurocurrency Rate Advances or EURIBOR Rate Advances, and (ii) 9:00
\na.m. (Chicago time) on the proposed Borrowing Date, in the case of a Borrowing
\ncomprised of Base Rate Advances; provided<\/u> that in the case of a Borrowing
\ncomprised of Eurocurrency Rate Advances or EURIBOR Rate Advances, a copy of such
\nfacsimile notice shall also be given by the Borrower to J.P. Morgan Europe
\nLimited. Each notice of Syndicated Borrowing pursuant to this Section
\n2.02<\/u> (a “Notice of Syndicated Borrowing<\/u>“) shall be in substantially
\nthe form of Exhibit 2.02<\/u> hereto, specifying the proposed Borrowing Date,
\nType of Syndicated Advances, aggregate amount of the proposed Syndicated
\nBorrowing and the Interest Period, if any, and Agreed Currency applicable
\nthereto for each such Syndicated Advance, and shall include such information as
\nshall be required by Section 8.01(g)<\/u>. The Administrative Agent shall in
\nturn promptly notify each Bank by facsimile of the date, applicable interest
\nrate and aggregate amount of such Syndicated Borrowing and such Bank153s ratable
\nportion of such Syndicated Borrowing. Each Bank, for the account of its
\nApplicable Lending Office, shall (i) with respect to a Syndicated Borrowing
\ndenominated in Dollars, before 12:00 Noon (Chicago time) on the Borrowing Date
\nspecified in the notice received from the Administrative Agent pursuant to the
\npreceding sentence, deposit such Bank153s ratable portion of such Syndicated
\nBorrowing in same day funds to the Administrative Agent153s LS2 Incoming Clearing
\nAccount No. 5927684 (ABA No. 071000013) (unless another account is designated by
\nthe Administrative Agent for such purpose), Reference: Baxter International
\nInc., maintained at<\/p>\n<\/p>\n 18<\/p>\n \n
\n1 Chase Tower, Chicago, Illinois and (ii) with respect to a Syndicated
\nBorrowing denominated in an Agreed Currency other than Dollars, before 12:00
\nNoon (Local Time) in the city of the Administrative Agent153s account as specified
\nby the Administrative Agent to the Banks, on the Borrowing Date specified in the
\nnotice received from the Administrative Agent pursuant to the preceding
\nsentence, deposit such Bank153s ratable portion of such Syndicated Borrowing in
\nsuch funds as may then be customary for the settlement of international
\ntransactions in such Agreed Currency in such account of the Administrative
\nAgent. After the Administrative Agent153s receipt of such funds and upon
\nfulfillment of the applicable conditions set forth in Article VI<\/u>, the
\nAdministrative Agent shall make same day funds in the amount of such funds
\navailable to the Borrower by 2:00 p.m. (Local Time) on the date of Borrowing, at
\nthe account specified by the Borrower in the applicable Notice of Syndicated
\nBorrowing.<\/p>\n<\/p>\n SECTION 2.03. Method of Electing Interest Rates<\/u>.<\/p>\n<\/p>\n (a) The Advances included in each Syndicated Borrowing shall bear interest
\ninitially at the type of rate specified by the Borrower in the applicable Notice
\nof Syndicated Borrowing. Thereafter, the Borrower may from time to time elect to
\nchange or continue the Interest Period for each Borrowing (subject in each case
\nto the provisions of Article V<\/u>) consisting of Eurocurrency Rate Advances
\nand EURIBOR Rate Advances, as follows:<\/p>\n<\/p>\n (i) if such Advances are Base Rate Advances, the Borrower may elect to (A)
\nconvert such Advances to Eurocurrency Rate Advances or (B) continue such
\nAdvances as Base Rate Advances, in each case effective as of any Business Day;\n<\/p>\n<\/p>\n (ii) if such Advances are Eurocurrency Rate Advances, the Borrower may elect
\nto continue such Advances as Eurocurrency Rate Advances for an additional
\nInterest Period, effective on the last day of the then current Interest Period
\napplicable to such Advances; and<\/p>\n<\/p>\n (iii) if such Advances are EURIBOR Rate Advances, the Borrower may elect to
\ncontinue such Advances as EURIBOR Rate Advances for an additional Interest
\nPeriod, effective as of the last day of the then current Interest Period
\napplicable to such Advances.<\/p>\n<\/p>\n Each such election shall be made by delivering a notice (a “Notice of
\nInterest Rate Election<\/u>“) to the Administrative Agent by not later than 10:00
\na.m. (Local Time) at least three (3) Business Days before the conversion or
\ncontinuation selected in such notice is to be effective; provided<\/u> that in
\nthe case of an election comprised of Eurocurrency Rate Advances or EURIBOR Rate
\nAdvances, a copy of such Notice of Interest Rate Election shall also be given by
\nthe Borrower to J.P. Morgan Europe Limited. If the Borrower shall fail to issue
\na Notice of Interest Rate Election within three (3) Business Days prior to the
\nend of any Interest Period (unless the Borrower shall have issued a notice of
\nprepayment in respect of the applicable Borrowing in accordance with Section
\n5.12<\/u>), the Advances comprising such Borrowing shall be, as applicable,
\nconverted into or continued as Base Rate Advances or shall be, as applicable,
\ncontinued as a Eurocurrency Advance or EURIBOR Advance, as applicable, in the
\nsame Agreed Currency with an Interest<\/p>\n<\/p>\n 19<\/p>\n \n
\nPeriod of one (1) month (with respect to an Advance denominated in an Agreed
\nCurrency other than Dollars). A Notice of Interest Rate Election may, if it so
\nspecifies, apply to only a portion of the aggregate principal amount of the
\nrelevant Borrowing; provided<\/u> that (i) such portion is allocated ratably
\namong the Advances comprising such Borrowing and (ii) the portion to which such
\nNotice of Interest Rate Election applies, and the remaining portion to which it
\ndoes not apply, are each $25,000,000 or any larger multiple of $5,000,000 (or
\nthe Approximate Dollar Amounts thereof if such Syndicated Advances are
\ndenominated in Agreed Currencies other than in Dollars). Notwithstanding any
\ncontrary provision herein, this Section shall not be construed to permit the
\nBorrower to change the currency of any Borrowing.<\/p>\n<\/p>\n (b) Each Notice of Interest Rate Election shall be substantially in the form
\nof Exhibit 2.03<\/u> hereto and shall specify:<\/p>\n<\/p>\n (i) the Borrowing (or portion thereof) to which such notice applies;<\/p>\n<\/p>\n (ii) the date on which the conversion or continuation selected in such notice
\nis to be effective, which shall comply with the applicable clause of
\nsubsection (a)<\/u> above;<\/p>\n<\/p>\n (iii) if the Advances comprising such Borrowing are to be converted, the next
\nType of Advances; and<\/p>\n<\/p>\n (iv) the duration of the new Interest Period (if any).<\/p>\n<\/p>\n Each Interest Period specified in a Notice of Interest Rate Election shall
\ncomply with the provisions of the definition of Interest Period. Each Notice of
\nInterest Rate Election shall be irrevocable when given by the Borrower.<\/p>\n<\/p>\n (c) Upon receipt of a Notice of Interest Rate Election from the Borrower
\npursuant to subsection (a)<\/u> above, the Administrative Agent shall promptly
\nnotify each Bank of the contents thereof.<\/p>\n<\/p>\n (d) Upon the occurrence, and during the continuance, of an Event of Default,
\nthe Administrative Agent may (and, at the direction of the Majority Banks, the
\nAdministrative Agent shall) suspend the ability of the Borrower to obtain
\nConversions of Syndicated Borrowings into Eurocurrency Rate Advances or EURIBOR
\nRate Advances, and each Conversion proposed to occur during any such period of
\nsuspension shall, in the case of an Advance denominated in Dollars, be a
\nConversion into Base Rate Advances or shall, in the case of an Advance
\ndenominated in an Agreed Currency other than Dollars, be continued as a
\nEurocurrency Advance or EURIBOR Advance, as applicable, in the same Agreed
\nCurrency with an Interest Period of one (1) month. Such suspension shall become
\neffective upon notice thereof to the Borrower and each of the Banks, and shall
\nremain in effect until the Event of Default giving rise to such notice is cured
\nor waived.<\/p>\n<\/p>\n SECTION 2.04. Determination of Dollar Amounts; Required Payments;
\nTermination<\/u>.<\/p>\n<\/p>\n (a) The Administrative Agent will determine the Dollar Amount of:<\/p>\n<\/p>\n 20<\/p>\n \n
\n(i) each Advance as of the date three (3) Business Days prior to the
\nBorrowing Date or, if applicable, date of conversion\/continuation of such
\nAdvance, and<\/p>\n<\/p>\n (ii) all outstanding Advances on and as of the last Domestic Business Day of
\neach quarter and on any other Business Day elected by the Administrative Agent
\nin its discretion or upon instruction by the Majority Banks.<\/p>\n<\/p>\n Each day upon or as of which the Administrative Agent determines Dollar
\nAmounts as described in the preceding clauses (i) and (ii) is herein described
\nas a “Computation Date<\/u>” with respect to each Advance for which a Dollar
\nAmount is determined on or as of such day. If at any time the Dollar Amount of
\nthe sum of the aggregate principal amount of all outstanding Advances
\n(calculated, with respect to those Advances denominated in an Agreed Currency
\nother than Dollars, as of the most recent Computation Date with respect to each
\nsuch Advance) plus<\/u> the aggregate amount of any L\/C Obligations (net of
\nany Reimbursement Obligations that shall have been converted to Syndicated
\nBorrowings) exceeds 105% of the Aggregate Commitments, the Borrower shall
\nimmediately repay Advances (and\/or cash collateralize any outstanding Letters of
\nCredit) in an aggregate principal amount sufficient to cause the remaining
\noutstanding Advances and L\/C Obligations not to exceed the Aggregate
\nCommitments.<\/p>\n<\/p>\n (b) Any outstanding Advances and all other unpaid amounts due and payable
\nhereunder shall be paid in full by the Borrower on the Termination Date.<\/p>\n<\/p>\n SECTION 2.05. Increase in Aggregate Commitment<\/u>. The Borrower may, at
\nits option, on one or more occasions, seek to increase the Aggregate Commitments
\nby up to $500,000,000 up to a maximum Aggregate Commitment of $2,000,000,000
\nupon at least five (5) Domestic Business Days153 prior notice to the
\nAdministrative Agent, which notice shall specify the amount of any such
\nrequested increase and shall be delivered at a time when no Event of Default or
\nUnmatured Event of Default has occurred and is continuing. The Administrative
\nAgent, in consultation with the Borrower, will offer the increase in the
\nAggregate Commitments to banks or other financial institutions (which increase
\nmay be declined by any Bank in its sole discretion). If and to the extent that
\nsuch increase is accepted by banks or other financial institutions that are not
\nBanks hereunder, each such bank or other financial institution shall be
\nconsented to by the Administrative Agent and the Issuing Banks (which consents
\nshall not be unreasonably withheld or delayed). The Administrative Agent shall
\nreallocate the direct (in the case of Advances, other than Competitive Bid
\nAdvances) or participation (in the case of Letters of Credit) interest in each
\nthen outstanding Advance and Letter of Credit such that, after giving effect to
\nany increase by a new or existing Bank, all credit exposure (other than
\nCompetitive Bid Advances) hereunder is held ratably by the Banks in proportion
\nto their respective Commitments. If such assignments are made other than on the
\nlast day of the relevant Interest Period for the EURIBOR Advance or Eurocurrency
\nAdvances, as applicable, being assigned, the Borrower shall, upon demand by any
\nexisting Bank (with a copy of such demand to the Administrative Agent), pay to
\nthe Administrative Agent for the account of such Bank any amounts required to
\ncompensate such Bank for any costs referred to in Section 11.04(b)<\/u> which
\nit may reasonably incur as a result of such reallocation. No increase in the
\nAggregate Commitments shall become effective until the existing Bank or new Bank
\nextending such incremental commitment amount and the Borrower shall have
\nexecuted and delivered to the Administrative Agent an agreement in<\/p>\n<\/p>\n 21<\/p>\n \n
\nwriting in form and substance reasonably acceptable to the Administrative
\nAgent pursuant to which such Bank states its Commitment and agrees to assume and
\naccept the obligations and rights of a Bank hereunder.<\/p>\n<\/p>\n ARTICLE III<\/p>\n \n THE COMPETITIVE BID BORROWING FACILITY<\/p>\n \n SECTION 3.01. The Competitive Bid Facility<\/u>. Each Bank severally
\nagrees, on the terms and conditions provided herein, to make available to the
\nBorrower a competitive bid borrowing facility (the “Competitive Bid Borrowing
\nFacility<\/u>“) pursuant to which the Borrower may, from time to time on any
\nBusiness Day during the period from the date hereof to the Termination Date and
\nas otherwise set forth in this Article III<\/u>, request all of the Banks or
\ncertain Banks specified by the Borrower to offer to make Competitive Bid
\nAdvances denominated in Agreed Currencies to the Borrower. Each Bank of which
\nany such request shall be made may, but shall have no obligation to, make such
\noffers and the Borrower may, but shall have no obligation to, accept any such
\noffer in the manner set forth in this Article III<\/u>. The Competitive Bid
\nBorrowing Facility is an entirely separate facility from the Syndicated
\nBorrowing Facility; provided<\/u> that at no time shall the Facility Usage
\nexceed the Aggregate Commitments at such time (except that under the
\ncircumstances set forth in the last sentence of Section 2.04(a)<\/u>, due to
\ncurrency fluctuations, Facility Usage may equal up to 105% of the Aggregate
\nCommitments). Within the limits and on the conditions set forth in this
\nArticle III<\/u>, the Borrower may from time to time borrow, repay and
\nre-borrow under this Article III<\/u>.<\/p>\n<\/p>\n SECTION 3.02. Competitive Bid Quote Request<\/u>. When the Borrower wishes
\nto request offers to make Competitive Bid Advances under this Article
\nIII<\/u>, it shall deliver to the Administrative Agent a Competitive Bid Quote
\nRequest by telecopier or telex so as to be received no later than (x) 10:00 a.m.
\n(Local Time) at least four (4) Business Days prior to the Borrowing Date
\nproposed therein, in the case of a Eurocurrency Auction or EURIBOR Auction or
\n(y) 9:00 a.m. (Chicago time) at least one (1) Business Day prior to the
\nBorrowing Date proposed therein, in the case of an Absolute Rate Auction (or, in
\neither case upon reasonable prior notice to the Banks, such other time and date
\nas the Borrower and the Administrative Agent may agree), specifying:<\/p>\n<\/p>\n (a) the proposed Borrowing Date, which shall be a Business Day, for the
\nproposed Competitive Bid Advances;<\/p>\n<\/p>\n (b) the aggregate principal amount and currency of such Competitive Bid
\nAdvances;<\/p>\n<\/p>\n (c) whether the Competitive Bid Quotes requested are to set forth a
\nCompetitive Bid Margin (and, if so, whether based on a Eurocurrency Rate or
\nEURIBOR) or an Absolute Rate, or both;<\/p>\n<\/p>\n (d) the Interest Period and Agreed Currency applicable thereto; and<\/p>\n<\/p>\n (e) if fewer than all Banks are to be solicited, the names of the Banks to be
\nsolicited; provided<\/u> that the Borrower shall not specify fewer than all of
\nthe Banks, and<\/p>\n<\/p>\n 22<\/p>\n \n
\nthe Administrative Agent shall reject any Competitive Bid Quote Request that
\nspecifies fewer than all of the Banks, if the aggregate Dollar Amount of all
\nCompetitive Bid Advances which will be outstanding after giving effect to the
\nCompetitive Bid Advances requested in such Competitive Bid Quote Request and
\nwhich shall have been made in response to one or more Competitive Bid Quote
\nRequests that specified fewer than all of the Banks exceeds $150,000,000.<\/p>\n<\/p>\n In the case of a Eurocurrency Auction or EURIBOR Auction, such Competitive
\nBid Quote Request shall also be delivered by telecopier or telex by the Borrower
\nto J.P. Morgan Europe Limited. The Borrower may request offers to make
\nCompetitive Bid Advances for more than one (1) Interest Period, but not more
\nthan eight (8) Interest Periods, in a single Competitive Bid Quote Request. No
\nCompetitive Bid Quote Request shall be given within five (5) Business Days (or
\nsuch other number of days as the Borrower and the Administrative Agent may
\nagree) of any other Competitive Bid Quote Request. A Competitive Bid Quote
\nRequest that does not conform substantially to the format of Exhibit 3.02<\/u>
\nhereto shall be rejected, and the Administrative Agent shall promptly notify the
\nBorrower of such rejection by telex or telecopy.<\/p>\n<\/p>\n SECTION 3.03. Invitation for Competitive Bid Quotes<\/u>. The
\nAdministrative Agent shall (a) promptly upon receipt of a Competitive Bid Quote
\nRequest that is not rejected pursuant to Section 3.02<\/u>, and in any event
\nnot later than (i) 11:00 a.m. (Local Time) on the date of receipt of a
\nCompetitive Bid Quote Request, in the case of a Eurocurrency Auction or a
\nEURIBOR Auction, and (ii) 10:00 a.m. (Chicago time) on the date of receipt of a
\nCompetitive Bid Quote Request, in the case of an Absolute Rate Auction, provide
\nnotice by facsimile, telex or telecopy to each of the Banks (or, if fewer than
\nall of the Banks shall have been specified therein, to each of the specified
\nBanks) of the request set forth therein, and (b) promptly thereafter provide to
\neach such Bank by facsimile, telex or telecopy a copy of such Competitive Bid
\nQuote Request or a summary of the contents thereof. If, pursuant to Section
\n3.02<\/u>, the Borrower and the Administrative Agent shall agree as to times for
\nthe delivery of a Competitive Bid Quote Request other than those set forth in
\nSection 3.02<\/u>, and shall notify the Banks thereof, such notice to the
\nBanks shall set forth in addition any changes in the times set forth in this
\nSection 3.03<\/u>. A Competitive Bid Quote Request shall not be revocable at
\nany time after the Administrative Agent153s notice to the Banks by facsimile,
\ntelex or telecopy of such Competitive Bid Quote Request.<\/p>\n<\/p>\n SECTION 3.04. Submission and Contents of Competitive Bid Quotes<\/u>.<\/p>\n<\/p>\n (a) Each Bank receiving notice of a Competitive Bid Quote Request from the
\nAdministrative Agent pursuant to Section 3.03<\/u> may, in its sole
\ndiscretion, submit a Competitive Bid Quote containing an offer or offers to make
\nCompetitive Bid Advances in response to such Competitive Bid Quote Request. Each
\nCompetitive Bid Quote must comply with the requirements of this Section
\n3.04<\/u> and must be submitted to the Administrative Agent by telex or telecopy
\nat its offices specified in or pursuant to Section 11.02<\/u> not later than
\n(x) 1:00 p.m. (Local Time) at least three (3) Business Days prior to the
\nproposed Borrowing Date, in the case of a Eurocurrency Auction or a EURIBOR
\nAuction or (y) 9:00 a.m. (Chicago time) on the proposed Borrowing Date, in the
\ncase of an Absolute Rate Auction (or, in either case upon reasonable prior
\nnotice to the Banks, such other time and date as the Borrower and the
\nAdministrative Agent may<\/p>\n<\/p>\n 23<\/p>\n \n
\nagree); provided<\/u> that Competitive Bid Quotes submitted by JPMorgan
\nChase may be submitted, and may only be submitted, if the Administrative Agent
\nor JPMorgan Chase notifies the Borrower of the terms of the offer or offers
\ncontained therein not later than (x) one hour prior to the time all other Banks
\nare required hereunder to submit Competitive Bid Quotes to the Administrative
\nAgent, in the case of a Eurocurrency Auction or a EURIBOR Auction or (y) fifteen
\nminutes prior to the time all other Banks are required hereunder to submit
\nCompetitive Bid Quotes to the Administrative Agent, in the case of an Absolute
\nRate Auction. Subject to Articles VI<\/u> and IX<\/u>, any Competitive Bid
\nQuote so made shall be irrevocable except with the written consent of the
\nAdministrative Agent and the Borrower.<\/p>\n<\/p>\n (b) Each Competitive Bid Quote shall be in substantially the form of
\nExhibit 3.04<\/u> hereto and shall in any case specify:<\/p>\n<\/p>\n (i) the proposed Borrowing Date, which shall be the same as that set forth in
\nthe applicable Competitive Bid Quote Request;<\/p>\n<\/p>\n (ii) the principal amount of the Competitive Bid Advance for which each such
\noffer is being made, which principal amount (1) may be greater than, less than
\nor equal to the Commitment of the quoting Bank, (2) must be at least $10,000,000
\nand an integral multiple of $1,000,000 in excess thereof (or the Approximate
\nDollar Amount if denominated in an Agreed Currency other than Dollars), (3) may
\nnot exceed the aggregate principal amount of Competitive Bid Advances for which
\noffers were requested and (4) must be identified with an Interest Period and the
\nAgreed Currency specified in the applicable Competitive Bid Quote Request;<\/p>\n<\/p>\n (iii) in the case of a Eurocurrency Auction or a EURIBOR Auction, whether the
\nbasis of such offer is the Eurocurrency Rate or EURIBOR and the Competitive Bid
\nMargin offered for each such Competitive Bid Advance;<\/p>\n<\/p>\n (iv) in the case of an Absolute Rate Auction, the Absolute Rate offered for
\neach such Competitive Bid Advance;<\/p>\n<\/p>\n (v) the identity of the quoting Bank; and<\/p>\n<\/p>\n (vi) if the quoting Bank shall therein make offers with respect to more than
\none Type of Competitive Bid Advance, or at several rates or for several Interest
\nPeriods, in each case as shall have been requested by the Borrower in the
\napplicable Competitive Bid Quote Request, the maximum aggregate principal amount
\nwith respect to all such Competitive Bid Advances that such Bank shall be
\nwilling to extend to the Borrower on such proposed Borrowing Date.<\/p>\n<\/p>\n (c) The Administrative Agent shall reject any Competitive Bid Quote that:\n<\/p>\n<\/p>\n (i) is not substantially in the form of Exhibit 3.04<\/u> hereto or does
\nnot specify all of the information required by Section 3.04(b)<\/u>;<\/p>\n<\/p>\n 24<\/p>\n \n
\n(ii) contains qualifying, conditional or similar language, other than any
\nsuch language contained in Exhibit 3.04<\/u> hereto;<\/p>\n<\/p>\n (iii) proposes terms other than or in addition to those set forth in the
\napplicable Competitive Bid Quote Request; or<\/p>\n<\/p>\n (iv) arrives after the time set forth in Section 3.04(a)<\/u>.<\/p>\n<\/p>\n If any Competitive Bid Quote shall be rejected pursuant to this Section
\n3.04(c)<\/u>, the Administrative Agent shall notify the relevant Bank of such
\nrejection as soon as practical.<\/p>\n<\/p>\n SECTION 3.05. Notice to the Borrower<\/u>. The Administrative Agent shall
\npromptly notify the Borrower of the terms (i) of any Competitive Bid Quote
\nsubmitted by a Bank that is in accordance with Section 3.04<\/u> and (ii) of
\nany Competitive Bid Quote submitted by a Bank which amends, modifies or is
\notherwise inconsistent with a previous Competitive Bid Quote submitted by such
\nBank with respect to the same Competitive Bid Quote Request. Any such subsequent
\nCompetitive Bid Quote shall be disregarded by the Administrative Agent unless
\nsuch subsequent Competitive Bid Quote specifically states that it is submitted
\nsolely to correct a manifest error in such former Competitive Bid Quote. The
\nAdministrative Agent153s notice to the Borrower shall specify the aggregate
\nprincipal amount of Competitive Bid Advances for which offers have been received
\nfor each Interest Period specified in the related Competitive Bid Quote Request
\nand the respective principal amounts and Competitive Bid Margins or Absolute
\nRates, as the case may be, so offered.<\/p>\n<\/p>\n SECTION 3.06. Acceptance and Notice by the Borrower<\/u>. Not later than
\n(x) 10:00 a.m. (Local Time) at least two (2) Business Days prior to the proposed
\nBorrowing Date, in the case of a Eurocurrency Auction or EURIBOR Auction or (y)
\n10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of an
\nAbsolute Rate Auction (or, in either case upon reasonable prior notice to the
\nBanks, such other time and date as the Borrower and the Administrative Agent may
\nagree), the Borrower shall notify the Administrative Agent of its acceptance or
\nnon-acceptance of any or all of the offers so notified to it pursuant to
\nSection 3.05<\/u>; provided<\/u> that in the case of a Eurocurrency Auction
\nor EURIBOR Auction, the Borrower shall also notify J.P. Morgan Europe Limited of
\nits acceptance or non-acceptance of any or all of such Eurocurrency Auctions or
\nEURIBOR Auctions so notified to it pursuant to Section 3.05<\/u>;
\nprovided<\/u>, however<\/u>, that the failure by the Borrower to give such
\nnotice to the Administrative Agent or J.P. Morgan Europe Limited, as applicable,
\nwith respect to any such offer shall be deemed to be a rejection of such offer.
\nIn the case of acceptance, such notice (a “Notice of<\/u> Competitive Bid
\nBorrowing<\/u>“) shall be substantially in the form of Exhibit 3.06<\/u>
\nhereto and shall specify the aggregate principal amount of offers for each
\nInterest Period that are accepted. The Borrower may accept any Competitive Bid
\nQuote in whole or in part; provided<\/u> that:<\/p>\n<\/p>\n (a) the aggregate principal amount of Competitive Bid Advances may not exceed
\nthe applicable amount set forth in the related Competitive Bid Quote Request;\n<\/p>\n<\/p>\n (b) acceptance of offers may only be made on the basis of ascending
\nCompetitive Bid Margins or Absolute Rates, as the case may be, starting with the
\nlowest<\/p>\n<\/p>\n 25<\/p>\n \n
\nand continuing with the next lowest until offers in the aggregate amount
\nspecified by the Borrower for acceptance shall have been accepted; and<\/p>\n<\/p>\n (c) the Borrower may not accept any offer that is described in Section
\n3.04(c)<\/u> or that otherwise fails to comply with the requirements of this
\nAgreement.<\/p>\n<\/p>\n SECTION 3.07. Allocation by Administrative Agent<\/u>. If offers are made
\nby two (2) or more Banks with the same Competitive Bid Margins or Absolute
\nRates, as the case may be, for a greater aggregate principal amount than the
\namount in respect of which offers remain to be accepted, as specified by the
\nBorrower, for the related Interest Period (after giving effect to the acceptance
\nof all offers made at lower rates), the principal amount of Competitive Bid
\nAdvances in respect of which such offers are accepted shall be allocated by the
\nAdministrative Agent among such Banks as nearly as practicable (in such
\nmultiples, not greater than $5,000,000 (or the Approximate Dollar Amount if
\ndenominated in an Agreed Currency other than in Dollars), as the Administrative
\nAgent may deem appropriate) in proportion to the aggregate principal amount of
\nsuch offers. Allocations by the Administrative Agent of the amounts of
\nCompetitive Bid Advances shall be conclusive in the absence of manifest error.\n<\/p>\n<\/p>\n SECTION 3.08. Notification of Acceptances to the Affected Banks<\/u>. The
\nAdministrative Agent shall (a) promptly following its receipt of a Notice of
\nCompetitive Bid Borrowing and in any event not later than 11:00 a.m. (Local
\nTime) on the date of its receipt of such Notice of Competitive Bid Borrowing,
\nprovide notice by facsimile, telex or telecopy to each Bank that has made a
\nCompetitive Bid Quote of the extent to which its offer or offers have been
\naccepted, specifying in such notice the principal amount of each Competitive Bid
\nAdvance in respect of which such Competitive Bid Quote has been accepted, the
\nInterest Period therefor and the Competitive Bid Margin or Absolute Rate
\ntherefor, as applicable and (b) promptly thereafter provide notice to such Banks
\nby telex or telecopy confirming the same. If, pursuant to Section 3.06<\/u>,
\nthe Borrower and the Administrative Agent shall agree as to times for the
\ndelivery of a Notice of Competitive Bid Borrowing other than those set forth in
\nSection 3.06<\/u>, and shall notify the Banks thereof, such notice to the
\nBanks shall set forth in addition any changes in the times set forth in this
\nSection 3.08<\/u>.<\/p>\n<\/p>\n SECTION 3.09. Funding of Competitive Bid Advances<\/u>. Each Bank that is
\nto make a Competitive Bid Advance in connection with any Notice of Competitive
\nBid Borrowing shall, (i) with respect to a Competitive Bid Advance denominated
\nin Dollars, before 12:00 Noon (Chicago time) on the first day of the Interest
\nPeriod therefor specified in the notice from the Administrative Agent delivered
\npursuant to Section 3.08<\/u>, deposit the amount of each of such Bank153s
\nCompetitive Bid Advances in same day funds to the Administrative Agent153s LS2
\nIncoming Clearing Account No. 5927684 (ABA No. 071000013), Reference: ASST
\n(unless another account is designated by the Administrative Agent for such
\npurpose), Reference: Baxter International Inc., maintained at 1 Chase Tower,
\nChicago, Illinois and (ii) with respect to a Competitive Bid Advance denominated
\nin an Agreed Currency other than in Dollars, before 12:00 Noon (Local Time) in
\nthe city of the Administrative Agent153s EURIBOR Lending Office, on the first day
\nof the Interest Period therefor specified in the notice from the Administrative
\nAgent delivered pursuant to Section 3.08<\/u>, deposit the amount of each of
\nsuch Bank153s Competitive Bid Advances in such funds as may then be customary for
\nthe settlement of international transactions in such Agreed Currency in the city
\nof and at the address of the<\/p>\n<\/p>\n 26<\/p>\n \n
\nAdministrative Agent153s EURIBOR Lending Office. After the Administrative
\nAgent153s receipt of such funds and upon fulfillment of the applicable conditions
\nset forth in Article VI<\/u>, the Administrative Agent shall make same day
\nfunds in the applicable currency or currencies and in the aggregate amount of
\nsuch Competitive Bid Advances available to the Borrower by 2:00 p.m. (Local
\nTime) on the date of Borrowing, at the account specified by the Borrower in the
\napplicable Notice of Competitive Bid Borrowing. Promptly following each
\nCompetitive Bid Advance, the Administrative Agent shall notify each Bank of the
\namount thereof, the consequent Syndicated Reduction and the Interest Periods for
\nsuch Competitive Bid Advances.<\/p>\n<\/p>\n ARTICLE IV<\/p>\n \n THE LETTER OF CREDIT FACILITY<\/p>\n \n SECTION 4.01. Obligation to Issue<\/u>. Subject to the terms and conditions
\nof this Agreement and in reliance upon the representations, warranties and
\ncovenants of the Borrower herein set forth, each Issuing Bank hereby agrees to
\nissue for the account of the Borrower through such Issuing Bank153s branches as it
\nand the Borrower may jointly agree, one (1) or more Letters of Credit in
\naccordance with this Article IV<\/u>, from time to time during the period
\ncommencing on the date hereof and ending no later than five (5) Business Days
\nprior to the Termination Date, except as set forth in clause (ii)<\/u> of
\nSection 4.02<\/u>. On the Closing Date each Existing Letter of Credit shall be
\ndeemed to be a Letter of Credit issued under and governed in all respects by the
\nterms and conditions of this Agreement, and each Bank shall participate in each
\nExisting Letter of Credit in an amount equal to its pro rata share of the
\nAggregate Commitments.<\/p>\n<\/p>\n SECTION 4.02. Types and Amounts<\/u>. No Issuing Bank shall have any
\nobligation to and no Issuing Bank shall:<\/p>\n<\/p>\n (i) issue any Letter of Credit if on the date of issuance, before or after
\ngiving effect to the Letter of Credit requested hereunder, (a) the Facility
\nUsage at such time would exceed the Aggregate Commitments at such time, or (b)
\nthe aggregate outstanding amount of the L\/C Obligations would exceed
\n$375,000,000; or<\/p>\n<\/p>\n (ii) issue any Letter of Credit which has an expiration date (or date for
\npayment of any draft presented thereunder) later than the date which is five (5)
\nBusiness Days immediately preceding the Termination Date; provided<\/u>,
\nhowever<\/u>, that an Issuing Bank may issue a Letter of Credit which has an
\nexpiration date (or date for payment of any draft presented thereunder) later
\nthan the date which is five (5) Business Days immediately preceding the
\nTermination Date so long as the Borrower has cash collateralized on or prior to
\nthe date of issuance, such Letter of Credit in an aggregate principal amount
\nagreed to between the Borrower and such Issuing Bank. Notwithstanding the
\nforegoing, no Letter of Credit shall be issued which has an expiration date that
\nis more than three (3) years beyond the Termination Date.<\/p>\n<\/p>\n 27<\/p>\n \n
\nSECTION 4.03. Conditions<\/u>.<\/p>\n<\/p>\n (a) In addition to being subject to the satisfaction of the conditions
\ncontained in Sections 6.01<\/u> and 6.02<\/u>, the obligation of an Issuing
\nBank to issue any Letter of Credit is subject to the satisfaction in full of the
\nfollowing conditions:<\/p>\n<\/p>\n (i) the Borrower shall have delivered to the applicable Issuing Bank (with a
\ncopy to the Administrative Agent) an L\/C Application in the manner prescribed in
\nSection 4.04<\/u>, and the proposed Letter of Credit shall be reasonably
\nsatisfactory to such Issuing Bank as to form and content; and<\/p>\n<\/p>\n (ii) as of the date of issuance, no order, judgment or decree of any court,
\narbitrator or Governmental Authority shall purport by its terms to enjoin or
\nrestrain the applicable Issuing Bank from issuing such Letter of Credit and no
\nlaw, rule or regulation applicable to such Issuing Bank and no request or
\ndirective (whether or not having the force of law) from a Governmental Authority
\nwith jurisdiction over such Issuing Bank shall prohibit or request that such
\nIssuing Bank refrain from the issuance of Letters of Credit generally or the
\nissuance of that Letter of Credit or shall impose upon the Issuing Bank with
\nrespect to any Letter of Credit any restriction or reserve or capital
\nrequirement (for which the Issuing Bank is not otherwise compensated) or any
\nunreimbursed loss, cost or expense which was not applicable, in effect and known
\nto the Issuing Bank as of the date of this Agreement and which the Issuing Bank
\nin good faith deems material to it.<\/p>\n<\/p>\n (b) No Issuing Bank shall extend, renew, or amend any Letter of Credit unless
\nthe requirements of this Section 4.03<\/u> are met as though a new Letter of
\nCredit were then being requested and issued.<\/p>\n<\/p>\n SECTION 4.04. Procedure for Issuance of Letters of Credit<\/u>.<\/p>\n<\/p>\n (a) Prior to the issuance of each Letter of Credit, and as a condition of
\nsuch issuance, the Borrower shall deliver to the Issuing Bank (with a copy to
\nthe Administrative Agent) an L\/C Application signed by the Borrower, together
\nwith such other documents or items as may be required pursuant to the terms
\nthereof. Unless the Issuing Bank shall otherwise agree, each Letter of Credit
\nshall be issued no earlier than two (2) Business Days after delivery of the
\nforegoing documents, which delivery may be by the Borrower to the Issuing Bank
\nby facsimile transmission, telex or other electronic means followed by delivery
\nof executed originals within five (5) days thereafter. The documents so
\ndelivered shall be in compliance with the requirements set forth in Sections
\n4.02<\/u> and 4.03<\/u>, and shall specify therein (i) the stated amount of the
\nLetter of Credit requested, (ii) the effective date of issuance of such
\nrequested Letter of Credit, which shall be a Business Day, (iii) the date on
\nwhich such requested Letter of Credit is to expire, which shall be a Business
\nDay not later than five (5) Business Days prior to the Termination Date, except
\nas permitted in Section 4.02(ii)<\/u>, and (iv) the aggregate amount of L\/C
\nObligations which are outstanding and which will be outstanding after giving
\neffect to the requested Letter of Credit issuance. Subject to the terms and
\nconditions of<\/p>\n<\/p>\n 28<\/p>\n \n
\nSections 4.02<\/u> and 4.03<\/u>, and provided that the applicable
\nconditions set forth in Sections 6.01<\/u> and 6.02<\/u> shall, to the
\nknowledge of the Issuing Bank, have been satisfied, the Issuing Bank shall, on
\nthe requested date, issue a Letter of Credit on behalf of the Borrower in
\naccordance with the Issuing Bank153s usual and customary business practices (and a
\ncopy of such issued Letter of Credit shall be delivered by the Issuing Bank to
\nthe Administrative Agent). In addition, any amendment of an existing Letter of
\nCredit that has the effect of increasing the face amount thereof or extending
\nthe expiration date thereof shall be deemed to be an issuance of a new Letter of
\nCredit and shall be subject to the requirements of this Section 4.04<\/u>.\n<\/p>\n<\/p>\n (b) The applicable Issuing Bank shall give the Administrative Agent written
\nor telex notice of the issuance of a Letter of Credit; provided<\/u>,
\nhowever<\/u>, that the failure to provide such notice shall not result in any
\nliability on the part of such Issuing Bank.<\/p>\n<\/p>\n (c) Notwithstanding anything contained in any L\/C Application or any document
\nexecuted in connection therewith to the contrary, in the event any term or
\nprovision of such L\/C Application or other document is inconsistent with any
\nterm or provision of this Agreement, the terms and provisions of this Agreement
\nshall control and prevail.<\/p>\n<\/p>\n SECTION 4.05. Letter of Credit Participation<\/u>. Unless a Bank shall have
\nnotified the Issuing Bank, prior to its issuance of a Letter of Credit, that any
\napplicable condition precedent set forth in Sections 6.01<\/u> or 6.02<\/u>
\nhad not then been satisfied, immediately upon the issuance of each other Letter
\nof Credit hereunder, each Bank shall be deemed to have automatically,
\nirrevocably and unconditionally purchased and received from the applicable
\nIssuing Bank an undivided interest and participation in and to such Letter of
\nCredit, the obligations of the Borrower in respect thereof, and the liability of
\nsuch Issuing Bank thereunder (collectively, as to each Bank, an “L\/C
\nInterest<\/u>“) in an amount equal to the amount available for drawing under such
\nLetter of Credit multiplied by such Bank153s pro rata share of the Aggregate
\nCommitments. Each Issuing Bank will notify each Bank that has a Commitment
\npromptly upon presentation to it of an L\/C Draft or upon any other draw under a
\nLetter of Credit. On or before the Business Day on which an Issuing Bank makes
\npayment of each such L\/C Draft or, in the case of any other draw on a Letter of
\nCredit, on demand by the Administrative Agent, each Bank shall make payment to
\nthe Administrative Agent, for the account of the applicable Issuing Bank, in
\nimmediately available funds in an amount equal to the amount of the payment
\nunder the L\/C Draft or other draw on the Letter of Credit multiplied by such
\nBank153s pro rata share of the Aggregate Commitments. Except to the extent set
\nforth in the last sentence of this Section 4.05, the obligation of each Bank to
\nreimburse the Issuing Banks under this Section 4.05<\/u> shall be
\nunconditional, continuing, irrevocable and absolute without counterclaim or
\nset-off; provided<\/u>, however<\/u>, the obligation of each Bank shall not
\nextend to payments made under a Letter of Credit resulting from the Issuing
\nBank153s gross negligence or willful misconduct in honoring any L\/C Draft. In the
\nevent that any Bank fails to make payment to the Administrative Agent of any
\namount due under this Section 4.05<\/u>, the Administrative Agent shall be
\nentitled to receive, retain and apply against such obligation the principal and
\ninterest otherwise payable to such Bank hereunder until the Administrative Agent
\nreceives such payment from such Bank or such obligation is otherwise fully
\nsatisfied, and such Bank shall pay to the Administrative Agent, for the account
\nof the applicable Issuing Bank, interest on the amount of such Bank153s
\noutstanding<\/p>\n<\/p>\n 29<\/p>\n \n
\nobligation at the Federal Funds Rate; provided<\/u>, however<\/u>, that
\nnothing contained in this sentence shall relieve such Bank of its obligation to
\nreimburse the applicable Issuing Bank for such amount in accordance with this
\nSection 4.05<\/u>. Notwithstanding the foregoing, no Bank shall have any
\nreimbursement, payment or other obligation with respect to any Letter of Credit
\nissued pursuant to the proviso in Section 4.02(ii)<\/u> hereof.<\/p>\n<\/p>\n SECTION 4.06. Reimbursement Obligation<\/u>. The Borrower agrees
\nunconditionally, irrevocably and absolutely to pay immediately to the
\nAdministrative Agent, for the account of the Banks which have Commitments, the
\namount of each drawing made under or pursuant to a Letter of Credit (such
\nobligation of the Borrower to reimburse the Administrative Agent for a drawing
\nmade under a Letter of Credit being hereinafter referred to as a
\n“Reimbursement Obligation<\/u>” with respect to such Letter of Credit) plus
\nall other charges and expenses with respect thereto specified in Section
\n4.07<\/u> or in the applicable L\/C Application. If the Borrower at any time fails
\nto repay a Reimbursement Obligation pursuant to this Section 4.06<\/u>, the
\nBorrower shall be deemed to have elected to borrow under a Syndicated Borrowing,
\nas of the date of the drawing giving rise to the Reimbursement Obligation and
\nequal in amount to the amount of the unpaid Reimbursement Obligation. Such
\nSyndicated Borrowing shall be made automatically, without notice and without any
\nrequirement to satisfy the conditions precedent otherwise applicable to a
\nSyndicated Borrowing. Such Syndicated Borrowing shall be comprised of Base Rate
\nAdvances made by the Banks, each Advance being in the amount of the portion of
\nthe related drawing that shall have been funded by the applicable Bank. The
\nproceeds of such Syndicated Borrowing shall be used to repay such Reimbursement
\nObligation.<\/p>\n<\/p>\n SECTION 4.07. Issuing Bank Charges<\/u>. In addition to the fees described
\nin Section 5.04(c)<\/u>, the Borrower agrees to pay to each Issuing Bank, (i)
\non the date of issuance of each Letter of Credit (or on such other date as may
\nbe agreed between the Borrower and the applicable Issuing Bank), a fronting fee
\nin respect of such Letter of Credit in an amount not to exceed. 125% per annum
\nof the face amount of such Letter of Credit, and (ii) all reasonable and
\ncustomary fees and other issuance, amendment, document examination, negotiation
\nand presentment expenses and related charges in connection with the issuance,
\namendment, presentation of L\/C Drafts, and the like customarily charged by the
\nIssuing Banks with respect to Letters of Credit, including, without limitation,
\nstandard commissions, payable promptly following delivery to the Borrower of
\neach invoice in respect of any such amount. The Existing Letters of Credit shall
\nnot be subject to the charges described herein to the extent such charges are
\nduplicative of charges paid with respect thereto pursuant to the Existing Credit
\nAgreement.<\/p>\n<\/p>\n SECTION 4.08. Issuing Bank Reporting Requirements<\/u>. In addition to the
\nnotices required by Section 4.04(b)<\/u>, each Issuing Bank shall, no later
\nthan the tenth Business Day following the last day of each month, provide to the
\nAdministrative Agent, upon the Administrative Agent153s request, schedules, in
\nform and substance reasonably satisfactory to the Administrative Agent, showing
\nthe date of issue, account party, amount, expiration date and the reference
\nnumber of each Letter of Credit issued by it outstanding at any time during such
\nmonth and the aggregate amount payable by the Borrower during such month. In
\naddition, upon the request of the Administrative Agent, each Issuing Bank shall
\nfurnish to the Administrative Agent copies of any Letter of Credit to which the
\nIssuing Bank is party and such other documentation as may reasonably be
\nrequested by the Administrative Agent. Upon the request of any Bank, the
\nAdministrative Agent will provide to such Bank information concerning such
\nLetters of Credit.<\/p>\n<\/p>\n 30<\/p>\n \n
\nSECTION 4.09. Indemnification; Exoneration<\/u>.<\/p>\n<\/p>\n (a) In addition to amounts payable as elsewhere provided in this Article
\nIV<\/u>, the Borrower hereby agrees to protect, indemnify, pay and save harmless
\nthe Administrative Agent, each Issuing Bank and each Bank from and against any
\nand all liabilities and costs which the Administrative Agent, such Issuing Bank
\nor such Bank may incur or be subject to as a consequence, direct or indirect, of
\n(i) the issuance of any Letter of Credit other than as a result of the gross
\nnegligence or willful misconduct of the Issuing Bank, or (ii) the failure of the
\napplicable Issuing Bank to honor a drawing under a Letter of Credit as a result
\nof any act or omission, whether rightful or wrongful, of any present or future
\nde jure<\/u> or de facto<\/u> Governmental Authority (all such acts or
\nomissions herein called “Governmental Acts<\/u>“).<\/p>\n<\/p>\n (b) As among the Borrower, the Banks, the Administrative Agent and the
\nIssuing Banks, the Borrower assumes all risks of the acts and omissions of, or
\nmisuse of each Letter of Credit by, the beneficiary of such Letter of Credit. In
\nfurtherance and not in limitation of the foregoing, neither the Administrative
\nAgent, any Issuing Bank nor any Bank shall be responsible for (unless caused by
\nits gross negligence or willful misconduct): (i) the form, validity,
\nsufficiency, accuracy, genuineness or legal effect of any document submitted by
\nany party in connection with the application for and issuance of the Letters of
\nCredit, even if it should in fact prove to be in any or all respects invalid,
\ninsufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency
\nof any instrument transferring or assigning or purporting to transfer or assign
\na Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
\nwhole or in part, which may prove to be invalid or ineffective for any reason;
\n(iii) failure of the beneficiary of a Letter of Credit to comply duly with
\nconditions required in order to draw upon such Letter of Credit; (iv) errors,
\nomissions, interruptions or delays in transmission or delivery of any messages,
\nby mail, cable, telegraph, telex, or other similar form of teletransmission or
\notherwise; (v) errors in interpretation of technical trade terms; (vi) any loss
\nor delay in the transmission or otherwise of any document required in order to
\nmake a drawing under any Letter of Credit or of the proceeds thereof; (vii) the
\nmisapplication by the beneficiary of a Letter of Credit of the proceeds of any
\ndrawing under such Letter of Credit; and (viii) any consequences arising from
\ncauses beyond the control of the Administrative Agent, the Issuing Banks and the
\nBanks, including, without limitation, any Governmental Acts. None of the above
\nshall affect, impair, or prevent the vesting of any Issuing Bank153s rights or
\npowers under this Section 4.09<\/u>.<\/p>\n<\/p>\n (c) In furtherance and extension and not in limitation of the specific
\nprovisions hereinabove set forth, any action taken or omitted by any Issuing
\nBank under or in connection with the Letters of Credit or any related
\ncertificates shall not, in the absence of gross negligence or willful
\nmisconduct, put the applicable Issuing Bank, the Administrative Agent or any
\nBank under any resulting liability to the Borrower or relieve the Borrower of
\nany of its obligations hereunder to any such Person.<\/p>\n<\/p>\n (d) Without prejudice to the survival of any other agreement of the Borrower
\nhereunder, the agreements and obligations of the Borrower contained in this
\nSection 4.09<\/u><\/p>\n<\/p>\n 31<\/p>\n \n
\nshall survive the payment in full of the Advances and other obligations
\nhereunder, the termination of the Letters of Credit and the termination of this
\nAgreement.<\/p>\n<\/p>\n ARTICLE V<\/p>\n \n GENERAL TERMS<\/p>\n \n SECTION 5.01. Illegality; Interest Rate Inadequate or Unfair<\/u>. The
\nobligation of each Bank to extend an Advance on the date therefor is subject to
\nthe following:<\/p>\n<\/p>\n (a) If, after the date of this Agreement, the adoption of any applicable law,
\nrule or regulation, or any change therein, or any change in the interpretation
\nor administration thereof by any Governmental Authority, central bank or
\ncomparable agency charged with the interpretation or administration thereof, or
\ncompliance by any Bank (or its Eurocurrency Lending Office or its EURIBOR
\nLending Office) with any request or directive (whether or not having the force
\nof law) of any such authority, central bank or comparable agency shall make it
\nunlawful or impossible for any Bank (or its Eurocurrency Lending Office or its
\nEURIBOR Lending Office) to make, maintain or fund its Eurocurrency Advances or
\nEURIBOR Advances, such Bank shall so notify the Administrative Agent. The
\nAdministrative Agent and such Bank shall forthwith give notice thereof to the
\nother Banks and the Borrower, whereupon until such Bank notifies the Borrower
\nand the Administrative Agent that the circumstances giving rise to such
\nsuspension no longer exist, the obligation of such Bank to make (or to Convert
\nother Advances into) Eurocurrency Advances and\/or EURIBOR Advances, as
\napplicable, shall be suspended and each Eurocurrency Advance and\/or EURIBOR
\nAdvance, as applicable, which such Bank shall thereafter be required to make
\nhereunder (or Convert into) shall be made as (or Converted into) a Base Rate
\nAdvance, which Base Rate Advance shall be made (or Converted) on the same day as
\nthe Eurocurrency Advances or EURIBOR Advances made (or Converted into) by the
\nother Banks and comprising the balance of such Borrowing. If such Bank (A) shall
\ndetermine that it may not lawfully continue to maintain and fund any of its
\noutstanding Eurocurrency Advances and\/or EURIBOR Advances to maturity, (B) shall
\nso specify in a written notice to the Borrower and the Administrative Agent and
\n(C) if at such time fewer than three (3) Banks shall have reached a similar
\ndetermination, shall deliver to the Borrower and the Administrative Agent an
\nopinion of counsel concurring in such determination, the Borrower shall
\nimmediately Convert in full the then outstanding principal amount of each such
\nEurocurrency Advance and\/or EURIBOR Advance into a Base Rate Advance in an equal
\nprincipal amount (on which interest and principal shall be payable
\ncontemporaneously with the related Eurocurrency Advances or EURIBOR Advances of
\nthe other Banks).<\/p>\n<\/p>\n (b) If, with respect to Borrowings to consist of Eurocurrency Advances or
\nEURIBOR Advances, (i) the Administrative Agent shall have determined (which
\ndetermination shall be conclusive and binding upon all parties hereto) that by
\nreason of circumstances affecting generally either the London interbank market
\nor the Brussels euro-zone interbank market, as applicable, and after using its
\nbest efforts to ascertain the interest rate applicable to either the
\nEurocurrency Advances or EURIBOR Advances, as applicable, adequate and
\nreasonable means do not exist for ascertaining such applicable<\/p>\n<\/p>\n 32<\/p>\n \n
\nrate, or (ii) by the Eurocurrency Business Day or the EURIBOR Business Day,
\nas applicable, before the first day of any Interest Period in respect of a
\nBorrowing to consist of Eurocurrency Advances or EURIBOR Advances, the
\nAdministrative Agent shall have received notice from the Majority Banks (or, in
\nthe case of a Competitive Bid Borrowing comprised of Eurocurrency Bid Rate
\nAdvances or EURIBOR Bid Rate Advances, Banks selected to make more than fifty
\npercent (50%) of the aggregate principal amount of such Advances) that after
\nusing their respective best efforts to obtain deposits in the applicable Agreed
\nCurrency, such deposits are not available to such Banks (as such best efforts
\nand unavailability are conclusively certified in writing to the Administrative
\nAgent and the Borrower) in the ordinary course of business in the London
\ninterbank market or the Brussels euro-zone interbank market, as applicable, in
\nsufficient amounts to make its Eurocurrency Advances or EURIBOR Advances, then,
\nin each case, the Administrative Agent shall by 12:00 Noon (Chicago time) on
\nsuch Business Day notify the Borrower of such event, and the right of the
\nBorrower to select Eurocurrency Advances or EURIBOR Advances, as applicable, for
\nsuch Borrowing or any subsequent Borrowing (and the right of the Borrower to
\nConvert Advances into Eurocurrency Rate Advances or EURIBOR Rate Advances, as
\napplicable) shall be suspended until the Administrative Agent shall notify the
\nBorrower and the Banks that the circumstances causing such suspension no longer
\nexist. The obligation of the Banks to make Eurocurrency Advances or EURIBOR
\nAdvances, as applicable, in connection with such Notice of Borrowing shall
\nthereupon terminate, and each Bank obligated to participate in such Borrowing
\nshall extend a Base Rate Advance to the Borrower in lieu of the originally
\nrequested Type of Advance, which Base Rate Advance shall be made on the date
\nspecified in the original Notice of Borrowing. In the case of an outstanding
\nNotice of Interest Rate Election at the time any such suspension shall occur,
\nsuch Notice shall be deemed amended, without any further action on the part of
\nthe Borrower, to request that the Syndicated Advances specified therein be
\nConverted to Base Rate Advances.<\/p>\n<\/p>\n (c) If the Majority Banks (or, in the case of a Competitive Bid Borrowing
\ncomprised of Eurocurrency Bid Rate Advances or EURIBOR Bid Rate Advances, Banks
\nselected to make more than fifty percent (50%) of the aggregate principal amount
\nof such Advances) shall, by 11:00 a.m. (Chicago time) on the Eurocurrency
\nBusiness Day or the EURIBOR Business Day, as applicable, before the first day of
\nany Interest Period in respect of a Borrowing to consist of Eurocurrency
\nAdvances or EURIBOR Advances, as applicable, notify the Administrative Agent and
\nthe Borrower (setting forth in writing the reasons therefor) that the
\nEurocurrency Rate for Eurocurrency Advances and\/or the EURIBOR for EURIBOR
\nAdvances comprising such Borrowing will not adequately reflect the cost to such
\nBanks of making or funding their respective Advances for such Borrowing or
\nConversion, the right of the Borrower to select Eurocurrency Advances and\/or
\nEURIBOR Advances, as applicable, for such Borrowing or Conversion and any
\nsubsequent Borrowing or Conversion shall be suspended until the Administrative
\nAgent shall notify the Borrower and the Banks that the circumstances causing
\nsuch suspension no longer exist. The obligation of the Banks to make
\nEurocurrency Advances and\/or EURIBOR Advances, as applicable, in connection with
\nsuch Notice of Borrowing shall thereupon terminate and each Bank obligated to
\nparticipate in such Borrowing shall extend a Base Rate Advance to the Borrower
\nin lieu of the originally requested Type of Advance, which Base Rate Advance
\nshall be made on the date specified in the original<\/p>\n<\/p>\n 33<\/p>\n \n
\nNotice of Borrowing. In the case of an outstanding Notice of Interest Rate
\nElection at the time any such suspension shall occur, such Notice shall be
\ndeemed amended, without any further action on the part of the Borrower, to
\nrequest that the Syndicated Advances specified therein be Converted to Base Rate
\nAdvances.<\/p>\n<\/p>\n SECTION 5.02. Effect of Notice of Borrowing; Maximum Number of
\nBorrowings<\/u>.<\/p>\n<\/p>\n (a) Subject to Section 5.01<\/u>, each Notice of Borrowing and Notice of
\nInterest Rate Election shall be irrevocable and binding on the Borrower.<\/p>\n<\/p>\n (b) A Notice of Borrowing shall be rejected by the Administrative Agent, and
\nthe Banks shall have no obligation to extend any Advances that may be requested
\nin such Notice of Borrowing, if after giving effect to the Borrowing requested
\nin such Notice of Borrowing there would then be more than fifteen (15)
\nBorrowings outstanding (whether Syndicated Borrowings, Competitive Bid
\nBorrowings, or any combination of the foregoing).<\/p>\n<\/p>\n SECTION 5.03. Effect of Failure to Borrow or Fund<\/u>.<\/p>\n<\/p>\n (a) In the case of any Borrowing which the related Notice of Borrowing
\nspecifies is to be comprised of Fixed Rate Advances, the Borrower shall
\nindemnify each Bank against all direct out-of-pocket losses and reasonable
\nexpenses incurred by such Bank as a result of any failure by the Borrower to
\nfulfill on or before the date specified for such Borrowing the applicable
\nconditions set forth in Article VI<\/u> to the extent of all direct
\nout-of-pocket losses and reasonable expenses incurred by reason of the
\nliquidation or reemployment of deposits or other funds acquired by such Bank to
\nfund the Advance to be made by such Bank as part of such Borrowing when such
\nAdvance, as a result of such failure, is not made on such date. The Borrower
\nshall not be liable to any Bank under this Section 5.03(a)<\/u> with respect
\nto consequential damages or loss of anticipated profits arising or incurred by
\nsuch Bank in connection with the Borrower153s failure to fulfill timely the
\napplicable conditions set forth in Article VI<\/u>.<\/p>\n<\/p>\n (b) Unless the Administrative Agent shall have received notice from a Bank
\nprior to the date of any Borrowing (or, in the case of any Borrowing comprised
\nof Base Rate Advances, prior to 12:00 Noon (Chicago time) on the date of such
\nBorrowing) that such Bank will not make available to the Administrative Agent
\nsuch Bank153s ratable portion of such Borrowing, the Administrative Agent may
\nassume that such Bank has made such portion available to the Administrative
\nAgent on the date of such Borrowing in accordance with the terms of Section
\n2.02<\/u> or Section 3.09<\/u>, as applicable, and the Administrative Agent
\nmay, in reliance upon such assumption make available to the Borrower on such
\ndate a corresponding amount. If and to the extent that such Bank shall not have
\nso made such ratable portion available to the Administrative Agent, such Bank
\nand the Borrower severally agree to repay to the Administrative Agent forthwith
\non demand such corresponding amount together with interest thereon, for each day
\nfrom the date such amount is made available to the Borrower until the date such
\namount is repaid to the Administrative Agent, at (i) in the case of the
\nBorrower, the interest rate applicable<\/p>\n<\/p>\n 34<\/p>\n \n
\nat the time to Advances comprising such Borrowing and (ii) in the case of
\nsuch Bank, the Federal Funds Rate. If such Bank shall repay to the
\nAdministrative Agent such corresponding amount, such amount so repaid shall
\nconstitute such Bank153s Advance as part of such Borrowing for purposes of this
\nAgreement.<\/p>\n<\/p>\n (c) The failure of any Bank to make the Advance to be made by it as part of
\nany Borrowing shall not relieve any other Bank of its obligation, if any,
\nhereunder to make its Advance on the date of such Borrowing, but no Bank shall
\nbe responsible for the failure of any other Bank to make the Advance to be made
\nby such other Bank on the date of any Borrowing.<\/p>\n<\/p>\n SECTION 5.04. Fees and Certain Credit Rating Determinations<\/u>.<\/p>\n<\/p>\n (a) Facility Fees<\/u>. The Borrower agrees to pay to the Administrative
\nAgent for the account of each Bank a facility fee at the respective rates per
\nannum set forth below on the average daily amount of such Bank153s Commitment. The
\napplicable rate for any period shall be determined on the basis of the publicly
\nannounced ratings (“Credit Ratings<\/u>“) by Moody153s, S&P and Fitch on the
\nBorrower153s senior unsecured Debentures during such period, the applicable rate
\nto change when and as such Credit Ratings change.<\/p>\n<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level<\/p>\n<\/td>\n | <\/td>\n | \n Credit Ratings of Borrower153s Unsecured Debentures<\/p>\n<\/td>\n | <\/td>\n | \n Facility Fee<\/p>\n<\/td>\n<\/tr>\n | \n| \n I.<\/p>\n<\/td>\n | <\/td>\n | \n Credit Ratings are better than or equal to at least two (2) of the following
\nthree (3): (i) A2 by Moody153s, (ii) A by S&P and (iii) A by Fitch;
\nprovided<\/u> that, notwithstanding the foregoing, in the event that the
\nMoody153s Credit Rating is A3, the S&P Credit Rating is A+ and the Fitch
\nCredit Rating is A-, Level I shall be in effect<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.080<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n II.<\/p>\n<\/td>\n | <\/td>\n | \n Level I shall not apply, and Credit Ratings are better than or equal to at
\nleast two (2) of the following three (3): (i) A3 by Moody153s, (ii) A- by S&P
\nand (iii) A- by Fitch<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.100<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 35<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level<\/p>\n<\/td>\n | <\/td>\n | \n Credit Ratings of Borrower153s Unsecured Debentures<\/p>\n<\/td>\n | <\/td>\n | \n Facility Fee<\/p>\n<\/td>\n<\/tr>\n | \n| \n III.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I nor Level II shall apply, and Credit Ratings are better than
\nor equal to at least two (2) of the following three (3): (i) Baa1 by Moody153s,
\n(ii) BBB+ by S&P and (iii) BBB+ by Fitch<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.125<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n IV.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I, Level II nor Level III shall apply, and Credit Ratings are
\nbetter than or equal to at least two (2) of the following three (3): (i) Baa2 by
\nMoody153s, (ii) BBB by S&P and (iii) BBB by Fitch<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.150<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n V.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I, Level II, Level III nor Level IV shall apply<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.175<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n The facility fee described in this Section 5.04(a)<\/u> shall accrue from
\nand including the date hereof to but excluding the Termination Date or, in the
\ncase of any Bank, the earlier date of reduction to zero of such Bank153s
\nCommitment hereunder, and shall be payable quarterly during the term of each
\nBank153s Commitment hereunder, in arrears, not later than the last day of each
\nJanuary, April, July and October, and, in the case of each Bank, on the date
\nsuch Bank153s Commitment shall be reduced to zero.<\/p>\n<\/p>\n (b) Credit Rating Determinations<\/u>. For purposes of determining the
\napplicable facility fee and letter of credit fees with respect to any period and
\nthe Eurocurrency Margin and EURIBOR Margin at any time:<\/p>\n<\/p>\n (i) Any change in a Credit Rating shall be deemed to become effective on the
\ndate of public announcement thereof and shall remain in effect until the date of
\npublic announcement that such rating shall no longer be in effect.<\/p>\n<\/p>\n (ii) If, during any period, at least two (2) of Moody153s, S&P and Fitch
\nshall not have publicly announced a Credit Rating with respect to the Borrower153s
\nsenior unsecured Debentures, the Borrower shall be at Level V; provided<\/u>
\nthat the Borrower may, at any time during such period, substitute another
\nnationally recognized rating agency acceptable to the Majority Banks for
\nMoody153s, S&P or Fitch. Any Credit Rating assigned by a substitute credit
\nagency, prior to the determination of the facility fee or letter of credit fee
\nfor the period during which such Credit Rating shall be in effect or the
\ndetermination of the applicable Eurocurrency Margin or EURIBOR Margin at any
\ntime, shall be converted to the nationally recognized equivalent thereof under
\nthe rating system employed by Moody153s, S&P or Fitch, as applicable.<\/p>\n<\/p>\n 36<\/p>\n \n
\n(c) Letter of Credit Fees<\/u>. In addition to the fees described in
\nSection 4.07<\/u>, the Borrower agrees to pay to the Administrative Agent for
\nthe account of each Bank a letter of credit fee, in respect of any period, at
\nthe respective rates per annum set forth below, on the average daily aggregate
\namount of such Bank153s L\/C Interest in respect of all Letters of Credit issued
\nbut undrawn during such period. The applicable rate for any period shall be
\ndetermined on the basis of the Credit Ratings on the Borrower153s senior unsecured
\nDebentures during such period, the applicable rate to change when and as such
\nCredit Ratings change.<\/p>\n<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level<\/p>\n<\/td>\n | <\/td>\n | \n Credit Ratings of Borrower153s Unsecured Debentures<\/p>\n<\/td>\n | <\/td>\n | \n Letter of Credit Fee Rate<\/p>\n<\/td>\n<\/tr>\n | \n| \n I.<\/p>\n<\/td>\n | <\/td>\n | \n Credit Ratings are better than or equal to at least two (2) of the following
\nthree (3): (i) A2 by Moody153s, (ii) A by S&P and (iii) A by Fitch;
\nprovided<\/u> that, notwithstanding the foregoing, in the event that the
\nMoody153s Credit Rating is A3, the S&P Credit Rating is A+ and the Fitch
\nCredit Rating is A-, the Level I letter of credit fee rate : LIBOR Market Rate
\nSpread shall be in effect<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.250<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n II.<\/p>\n<\/td>\n | <\/td>\n | \n Level I shall not apply, and Credit Ratings are better than or equal to at
\nleast two (2) of the following three (3): (i) A3 by Moody153s, (ii) A- by S&P
\nand (iii) A- by Fitch<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.375<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n III.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I nor Level II shall apply, and Credit Ratings are better than
\nor equal to at least two (2) of the following three (3): (i) Baa1 by Moody153s,
\n(ii) BBB+ by S&P and (iii) BBB+ by Fitch<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.500<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n IV.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I, Level II nor Level III shall apply, and Credit Ratings are
\nbetter than or equal to at least two (2) of the following three (3): (i) Baa2 by
\nMoody153s, (ii) BBB by S&P and (iii) BBB by Fitch<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.625<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 37<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Level<\/p>\n<\/td>\n | <\/td>\n | \n Credit Ratings of Borrower153s Unsecured Debentures<\/p>\n<\/td>\n | <\/td>\n | \n Letter of Credit Fee Rate<\/p>\n<\/td>\n<\/tr>\n | \n| \n V.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I, Level II, Level III nor Level IV shall apply<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 0.750<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n The letter of credit fee described in this Section 5.04(c)<\/u> for letters
\nof credit shall accrue from and including the date of initial issuance to but
\nexcluding the Termination Date or, in the case of any Bank, the earlier date of
\nreduction to zero of such Bank153s Commitment hereunder, and shall be payable
\nquarterly during the term of each Bank153s Commitment hereunder, in arrears, not
\nlater than the last day of each January, April, July and October, and, in the
\ncase of each Bank, on the date such Bank153s Commitment shall be reduced to zero.\n<\/p>\n<\/p>\n SECTION 5.05. Reduction of the Commitments<\/u>. The Borrower may, upon at
\nleast three (3) Business Days153 written notice to the Administrative Agent,
\nterminate in whole or reduce ratably in part the respective Commitments of the
\nBanks; provided<\/u> that (i) any such reduction shall not cause the Aggregate
\nCommitments to be less than the Facility Usage at such time, and (ii) in the
\ncase of any partial reduction of the Commitments, such partial reduction shall
\nbe in an aggregate amount not less than the lesser of (A) $20,000,000 (or an
\nintegral multiple of $5,000,000 in excess thereof) (or the Approximate Dollar
\nAmounts thereof if denominated in an Agreed Currency other than Dollars) and (B)
\nthe amount by which the Aggregate Commitments exceeds the Facility Usage at such
\ntime.<\/p>\n<\/p>\n SECTION 5.06. Repayment<\/u>. Each Syndicated Advance shall mature, and the
\nprincipal amount thereof shall be due and payable, on the Termination Date. Each
\nCompetitive Bid Advance shall mature, and the principal amount thereof shall be
\ndue and payable, on the last day of the Interest Period therefor.<\/p>\n<\/p>\n SECTION 5.07. Interest<\/u>. The Borrower shall pay interest on the unpaid
\nprincipal amount of each Advance made by each Bank from the date of such Advance
\nuntil such principal amount shall be paid in full at the following rates per
\nannum:<\/p>\n<\/p>\n (a) Base Rate Advances<\/u>. If such Advance is a Base Rate Advance, a rate
\nper annum equal at all times for such Advance to the Base Rate in effect from
\ntime to time, payable quarterly in arrears on the last day of January, April,
\nJuly and October and on the date such Base Rate Advance shall be Converted,
\nrepaid (whether due to acceleration or otherwise), on the principal amount so
\nrepaid, or paid in full.<\/p>\n<\/p>\n (b) Eurocurrency Rate Advances<\/u>. If such Advance is a Eurocurrency Rate
\nAdvance, a rate per annum equal at all times during the Interest Period for such
\nAdvance to the Eurocurrency Rate for such Interest Period plus<\/u> the
\nEurocurrency Margin (such rate to change when and as the Eurocurrency Margin
\nchanges), payable in arrears on the last day of such Interest Period (and, if
\nsuch Interest Period has a duration of more than three (3) months, on the date
\nduring such Interest Period which occurs three (3) months after the first day of
\nsuch Interest Period) and on the date such Eurocurrency Rate<\/p>\n<\/p>\n 38<\/p>\n \n
\nAdvance shall be Converted, repaid (whether due to acceleration or
\notherwise), on the principal amount so repaid, or paid in full.<\/p>\n<\/p>\n “Eurocurrency Margin<\/u>” means, at any time with respect to each
\nEurocurrency Rate Advance outstanding at such time (for any Advance in any
\nAgreed Currency other than Euro), the applicable rate per annum set forth in the
\ntable below, determined in accordance with Section 5.04(b)<\/u> on the basis
\nof the Credit Ratings on the Borrower153s senior unsecured Debentures at such
\ntime:<\/p>\n<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Credit Ratings of<\/p>\n<\/td>\n | <\/td>\n | \n Eurocurrency<\/p>\n<\/td>\n<\/tr>\n | \n| \n Level<\/p>\n<\/td>\n | <\/td>\n | \n Borrower153s Unsecured Debentures<\/p>\n<\/td>\n | <\/td>\n | \n Margin<\/p>\n<\/td>\n<\/tr>\n | \n| \n I.<\/p>\n<\/td>\n | <\/td>\n | \n Credit Ratings are better than or equal to at least two (2) of the following
\nthree (3): (i) A2 by Moody153s, (ii) A by S&P and (iii) A by Fitch;
\nprovided<\/u> that, notwithstanding the foregoing, in the event that the
\nMoody153s Credit Rating is A3, the S&P Credit Rating is A+ and the Fitch
\nCredit Rating is A-, Level I shall be in effect<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.250% \/ 0.750%<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n II.<\/p>\n<\/td>\n | <\/td>\n | \n Level I shall not apply, and Credit Ratings are better than or equal to at
\nleast two (2) of the following three (3): (i) A3 by Moody153s, (ii) A- by S&P
\nand (iii) A- by Fitch<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.375% \/ 1.00%<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n III.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I nor Level II shall apply, and Credit Ratings are better than
\nor equal to at least two (2) of the following three (3): (i) Baa1 by Moody153s,
\n(ii) BBB+ by S&P and (iii) BBB+ by Fitch<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.500% \/ 1.250%<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n IV.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I, Level II nor Level III shall apply, and Credit Ratings are
\nbetter than or equal to at least two (2) of the following three (3): (i) Baa2 by
\nMoody153s, (ii) BBB by S&P and (iii) BBB by Fitch<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.625% \/ 1.500%<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 39<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Credit Ratings of<\/p>\n<\/td>\n | <\/td>\n | \n Eurocurrency<\/p>\n<\/td>\n<\/tr>\n | \n| \n Level<\/p>\n<\/td>\n | <\/td>\n | \n Borrower153s Unsecured Debentures<\/p>\n<\/td>\n | <\/td>\n | \n Margin<\/p>\n<\/td>\n<\/tr>\n | \n| \n V.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I, Level II, Level III nor Level IV shall apply<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.750% \/ 1.750%<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n (c) EURIBOR Rate Advances<\/u>. If such Advance is a EURIBOR Rate Advance,
\na rate per annum equal at all times during the Interest Period for such Advance
\nto EURIBOR for such Interest Period plus<\/u> the EURIBOR Margin (such rate to
\nchange when and as the EURIBOR Margin changes), payable on the last day of such
\nInterest Period (and, if such Interest Period has a duration of more than three
\n(3) months, on the date during such Interest Period which occurs three (3)
\nmonths after the first day of such Interest Period) and on the date such EURIBOR
\nRate Advance shall be Converted, repaid (whether due to acceleration or
\notherwise), on the principal amount so repaid, or paid in full.<\/p>\n<\/p>\n “EURIBOR Margin<\/u>” means, at any time with respect to each EURIBOR Rate
\nAdvance outstanding at such time (for any Advance in Euro), the applicable rate
\nper annum set forth in the table below, determined in accordance with
\nSection 5.04(b)<\/u> on the basis of the Credit Ratings on the Borrower153s
\nsenior unsecured Debentures at such time:<\/p>\n<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Credit Ratings of<\/p>\n<\/td>\n | <\/td>\n | \n EURIBOR<\/p>\n<\/td>\n<\/tr>\n | \n| \n Level<\/p>\n<\/td>\n | <\/td>\n | \n Borrower153s Unsecured Debentures<\/p>\n<\/td>\n | <\/td>\n | \n Margin<\/p>\n<\/td>\n<\/tr>\n | \n| \n I.<\/p>\n<\/td>\n | <\/td>\n | \n Credit Ratings are better than or equal to at least two (2) of the following
\nthree (3): (i) A2 by Moody153s, (ii) A by S&P and (iii) A by Fitch;
\nprovided<\/u> that, notwithstanding the foregoing, in the event that the
\nMoody153s Credit Rating is A3, the S&P Credit Rating is A+ and the Fitch
\nCredit Rating is A-, Level I shall be in effect<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.250% \/ 0.750%<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n II.<\/p>\n<\/td>\n | <\/td>\n | \n Level I shall not apply, and Credit Ratings are better than or equal to at
\nleast two (2) of the following three (3): (i) A3 by Moody153s, (ii) A- by S&P
\nand (iii) A- by Fitch<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.375% \/ 1.00%<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 40<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Credit Ratings of<\/p>\n<\/td>\n | <\/td>\n | \n EURIBOR<\/p>\n<\/td>\n<\/tr>\n | \n| \n Level<\/p>\n<\/td>\n | <\/td>\n | \n Borrower153s Unsecured Debentures<\/p>\n<\/td>\n | <\/td>\n | \n Margin<\/p>\n<\/td>\n<\/tr>\n | \n| \n III.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I nor Level II shall apply, and Credit Ratings are better than
\nor equal to at least two (2) of the following three (3): (i) Baa1 by Moody153s,
\n(ii) BBB+ by S&P and (iii) BBB+ by Fitch<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.500% \/ 1.250%<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n IV.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I, Level II nor Level III shall apply, and Credit Ratings are
\nbetter than or equal to at least two (2) of the following three (3): (i) Baa2 by
\nMoody153s, (ii) BBB by S&P and (iii) BBB by Fitch<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.625% \/ 1.500%<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n V.<\/p>\n<\/td>\n | <\/td>\n | \n Neither Level I, Level II, Level III nor Level IV shall apply<\/p>\n<\/td>\n | <\/td>\n | \n LIBOR Market Rate Spread (min\/max) 0.750% \/ 1.750%<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n (d) Competitive Bid Advances<\/u>. Subject to Section 5.01<\/u>, if such
\nAdvance is a Competitive Bid Advance, a rate per annum equal (i) in the case of
\nan Absolute Rate Advance, to the Absolute Rate that shall have been offered by
\nsuch Bank pursuant to Section 3.04<\/u> in its Competitive Bid Quote related
\nthereto and accepted by the Borrower pursuant to Section 3.06<\/u> in its
\nNotice of Competitive Bid Borrowing related thereto, (ii) in the case of a
\nEurocurrency Bid Rate Advance, to the Eurocurrency Bid Rate calculated on the
\nbasis of the Competitive Bid Margin that shall have been offered by such Bank
\npursuant to Section 3.04<\/u> in its Competitive Bid Quote related thereto and
\naccepted by the Borrower pursuant to Section 3.06<\/u> in its Notice of
\nCompetitive Bid Borrowing related thereto, and (iii) in the case of a EURIBOR
\nBid Rate Advance, to the EURIBOR Bid Rate calculated on the basis of the
\nCompetitive Bid Margin that shall have been offered by such Bank pursuant to
\nSection 3.04<\/u> in its Competitive Bid Quote related thereto and accepted by
\nthe Borrower pursuant to Section 3.06<\/u> in its Notice of Competitive Bid
\nBorrowing related thereto, in each case payable on the last day of the
\napplicable Interest Period and, if such Interest Period has a duration of more
\nthan ninety (90) days or three (3) months, as the case may be, on each day which
\noccurs during such Interest Period every ninety (90) days or three (3) months,
\nas the case may be, from the first day of such Interest Period.<\/p>\n<\/p>\n 41<\/p>\n \n
\nSECTION 5.08. Additional Interest on Eurocurrency Advances and EURIBOR
\nAdvances<\/u>.<\/p>\n<\/p>\n (a) The Borrower shall pay to each Bank, so long as such Bank shall be
\nrequired under regulations of the Board of Governors of the Federal Reserve
\nSystem to maintain reserves with respect to liabilities or assets consisting of
\nor including Eurocurrency Liabilities, additional interest on the unpaid
\nprincipal amount of each Eurocurrency Advance and\/or EURIBOR Advance, as
\napplicable, of such Bank, from the date of such Advance until such principal
\namount is paid in full, at an interest rate per annum equal at all times during
\nthe Interest Period for such Advance to the remainder obtained by subtracting
\n(i) the Eurocurrency Rate or EURIBOR, as applicable, for such Interest Period
\nfrom (ii) the rate obtained by dividing the applicable rate referred to in
\nclause (i) above by that percentage equal to 100% minus<\/u> the Eurocurrency
\nRate Reserve Percentage of such Bank for such Interest Period, payable on each
\ndate on which interest is payable on such Advance.<\/p>\n<\/p>\n (b) For so long as any Bank is required to make special deposits with or
\ncomply with reserve assets, liquidity, cash margin or other requirements of any
\nmonetary or other authority (including any such requirement imposed by the Bank
\nof England, the Financial Services Authority, the European Central Bank or the
\nEuropean System of Central Banks, but excluding requirements reflected in the
\nEurocurrency Rate Reserve Percentage) in respect of any of such Bank153s Fixed
\nRate Advances, such Bank shall be entitled to require the Borrower to pay,
\ncontemporaneously with each payment of interest on each of such Bank153s Advances
\nsubject to such requirements, additional interest on such Advance at a rate per
\nannum specified by such Bank to be the actual cost to such Bank of complying
\nwith such requirements in relation to such Advance.<\/p>\n<\/p>\n (c) Any additional interest owed pursuant to subsections (a)<\/u> or
\n(b)<\/u> above shall be determined by such Bank and such Bank shall deliver
\nwritten notice thereof to the Borrower through the Administrative Agent;
\nprovided<\/u> that in the case of any such required reserves, special deposits
\nor other requirements referred to in subsections (a)<\/u> or (b)<\/u> above
\nthat are imposed after the date of this Agreement, the Borrower shall not be
\nrequired to compensate a Bank pursuant to this Section for any additional
\ninterest incurred more than 120 days prior to the date that such Bank notifies
\nthe Borrower of such required reserves, special deposits or other requirements.
\nThe Bank153s determination shall be prima<\/u> facie<\/u> evidence thereof.
\nSuch additional interest shall be payable to the Administrative Agent for the
\naccount of such Bank on each date on which interest is payable for such Advance.\n<\/p>\n<\/p>\n SECTION 5.09. Interest on Overdue Principal<\/u>. If any amount of
\nprincipal is not paid when due (whether at stated maturity, by acceleration or
\notherwise), that amount of principal shall bear interest, from the date on which
\nsuch amount is due until such amount is paid in full, payable on demand, at a
\nrate per annum equal at all times to two percent (2%) per annum above the
\ninterest rate in effect from time to time with respect to the applicable
\nAdvance.<\/p>\n<\/p>\n 42<\/p>\n \n
\nSECTION 5.10. Interest Rate Determinations<\/u>. The Administrative Agent
\nshall give prompt notice to (i) the Borrower and the Banks, of any applicable
\ninterest rate determined by the Administrative Agent for purposes of Section
\n5.07<\/u> and the applicable interest rate under Section 5.07(b)<\/u> and
\nSection 5.07(c)<\/u> and (ii) the Borrower and each Bank that is to make a
\nEurocurrency Bid Rate Advance or a EURIBOR Bid Rate Advance in connection with
\nany Notice of Competitive Bid Borrowing, of the applicable rate, if any,
\ndetermined by the Administrative Agent for determining the applicable
\nEurocurrency Bid Rate or EURIBOR Bid Rate with respect to such Advance.<\/p>\n<\/p>\n SECTION 5.11. Performance of Banks153 Obligations<\/u>. Each Bank shall use
\ncommercially reasonable efforts to keep apprised of all events and circumstances
\n(a) that would excuse or prohibit such Bank from performing its obligation to
\nmake (or to Convert Advances into) Eurocurrency Rate Advances or EURIBOR Rate
\nAdvances hereunder pursuant to Section 5.01(a)<\/u>, (b) that would permit
\nsuch Bank to demand additional interest or increased costs pursuant to
\nSection 5.08<\/u> or Section 5.13<\/u> or (c) that would permit the
\nAdministrative Agent or the Majority Banks pursuant to Section 11.12<\/u> to
\ndenominate an Advance in Dollars rather than the applicable Agreed Currency.
\nSuch Bank shall, as soon as practicable after becoming aware of any such event
\nor circumstance, use commercially reasonable efforts, to the extent permitted by
\nlaw, to perform its obligations to make Eurocurrency Rate Advances or EURIBOR
\nRate Advances through another office or lending office, and with respect to
\nincreased costs or additional interest, to reduce such increased costs or
\nadditional interest (if the use of such other office or lending office or such
\nreduction would not adversely affect the performance of such obligations or
\nrepayment of the Advances or result in, in any material respect, any increased
\ncost, loss, liability or other material disadvantage to such Bank in such Bank153s
\nreasonable judgment), in either case if by taking the action contemplated by the
\nforegoing, such event or circumstance would cease to exist.<\/p>\n<\/p>\n SECTION 5.12. Optional Prepayments<\/u>.<\/p>\n<\/p>\n (a) The Borrower may, upon notice to the Administrative Agent, given not
\nlater than 9:00 a.m. (Chicago time) on the proposed date of prepayment, in the
\ncase of prepayment of an Advance in Dollars, and 10:00 a.m. (London time) three
\n(3) Business Days before the proposed date of prepayment, in the case of
\nprepayment of an Advance in an Agreed Currency other than Dollars, by facsimile,
\nstating in such notice the proposed date and aggregate principal amount of the
\nprepayment, and if such notice is given, the Borrower shall prepay the
\noutstanding principal amount of the Syndicated Advances made as part of the same
\nSyndicated Borrowing in whole or, in the case of a Syndicated Borrowing
\ncomprised solely of Base Rate Advances, ratably in part, by paying the principal
\namount to be prepaid together with accrued interest thereon and other amounts
\nthen due and owing, if any, hereunder to the date of prepayment; provided<\/u>
\nthat in the case of a prepayment of an Advance in an Agreed Currency other than
\nDollars, such notice shall also be given by the Borrower to J.P. Morgan Europe
\nLimited; provided<\/u> further<\/u> that each partial prepayment shall be in
\nan amount not less than $20,000,000 and in an integral multiple of $5,000,000 in
\nexcess thereof (or the Approximate Dollar Amount if such Syndicated Advances to
\nbe so prepaid are denominated in Agreed Currencies other than Dollars). Each
\nsuch optional prepayment shall be applied to prepay ratably the Syndicated
\nAdvances of the several Banks included in such Syndicated<\/p>\n<\/p>\n 43<\/p>\n \n
\nBorrowing. If the Borrower prepays any Syndicated Borrowing consisting of
\nEurocurrency Rate Advances or EURIBOR Rate Advances on any day other than the
\nlast day of an Interest Period therefor, the Borrower shall reimburse each Bank
\nfor the losses, costs and expenses contemplated in Section 11.04(b)<\/u>. The
\nBorrower may not, unless otherwise required hereunder, prepay any Competitive
\nBid Advance without the consent of the Bank which shall have extended such
\nCompetitive Bid Advance.<\/p>\n<\/p>\n (b) Upon receipt of a notice of prepayment pursuant to this Section
\n5.12<\/u>, the Administrative Agent shall promptly notify each Bank of the
\ncontents thereof and of such Bank153s ratable share, if any, of such prepayment.
\nIn the event the Borrower and a Bank agree to the prepayment to such Bank of a
\nCompetitive Bid Advance, and such prepayment is made, the Borrower thereupon
\nshall notify the Administrative Agent and the Administrative Agent shall
\npromptly notify the other Banks thereof.<\/p>\n<\/p>\n SECTION 5.13. Increased Costs<\/u>. Subject to Section 5.11<\/u>, if,
\nafter the date of this Agreement, any of the following (a “Change in
\nLaw<\/u>“) shall occur:<\/p>\n<\/p>\n (a) due to either (i) the introduction of or any change (other than any
\nchange by way of imposition or increase of reserve requirements included in the
\nEurocurrency Rate Reserve Percentage) in or in the interpretation of any law or
\nregulation or (ii) the compliance with any guideline or request from any central
\nbank or other Governmental Authority (whether or not having the force of law),
\nthere shall be any increase in the cost to any Bank of agreeing or committing to
\nmake or making, funding or maintaining any Advances hereunder or issuing or
\nparticipating in any Letters of Credit (including, without limitation any
\nconversion of an Advance denominated in an Agreed Currency other than Euro into
\nan Advance denominated in Euro); or<\/p>\n<\/p>\n (b) either (i) the introduction of or any change in or in the interpretation
\nof any law, rule, regulation or guideline adopted after the date hereof and
\narising out of the July 1988 report of the Basel Committee on Banking Regulation
\nand Supervisory Practices entitled “International Convergence of Capital
\nMeasurement and Capital Standards” or (ii) compliance by any Bank with any law
\nor regulation, or with any guideline or request from any central bank or other
\nGovernmental Authority (whether or not having the force of law), affects or
\nwould affect the amount of capital required or expected to be maintained by such
\nBank or any corporation controlling such Bank and such Bank determines that the
\namount of such capital is increased by or based upon the existence of such
\nBank153s commitment to lend hereunder and other commitments of this type, or upon
\nthe making or funding of its Advances hereunder or upon the issuing or
\nmaintaining of its L\/C Interest hereunder (including, without limitation any
\nconversion of an Advance denominated in an Agreed Currency other than Euro into
\nan Advance denominated in Euro),<\/p>\n<\/p>\n then the Borrower shall from time to time, upon written demand by such Bank
\n(with a copy of such demand to the Administrative Agent), pay to the
\nAdministrative Agent for the account of such Bank, within 120 days after such
\nwritten demand, additional amounts sufficient to (i) in the case of any of the
\nevents described in clause (a)<\/u> above, reimburse such Bank for such
\nincreased cost,, such increased cost to be determined by such Bank using its
\ncustomary methods therefor<\/p>\n<\/p>\n 44<\/p>\n \n
\n(and, if such Bank uses from time to time more than one such method, the
\nmethod chosen for application hereunder shall be that method which most
\naccurately determines such increased cost), and (ii) in the case of any of the
\nevents described in clause (b)<\/u> above, compensate such Bank in light of
\nsuch circumstances, to the extent such Bank reasonably determines such increase
\nin capital to be allocable to the existence of such Bank153s commitment to lend or
\nmaintain Advances or to issue or maintain its L\/C Interests hereunder. A
\ncertificate as to any such amount (demonstrating, in reasonable detail, the
\ncalculations used by such Bank to determine such amount), submitted to the
\nBorrower and the Administrative Agent by such Bank, shall be prima<\/u>
\nfacie<\/u> evidence thereof. Notwithstanding anything herein to the contrary,
\n(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
\nrequests, rules, guidelines, requirements and directives thereunder, issued in
\nconnection therewith or in implementation thereof and (ii) all requests, rules,
\nguidelines, requirements and directives promulgated by the Bank for
\nInternational Settlements, the Basel Committee on Banking Supervision (or any
\nsuccessor or similar authority) or the United States or foreign regulatory
\nauthorities, in each case pursuant to Basel III, shall in each case be deemed to
\nbe a Change in Law regardless of the date enacted, adopted, issued or
\nimplemented.<\/p>\n<\/p>\n Failure or delay on the part of any Bank or Issuing Bank to demand
\ncompensation pursuant to this Section shall not constitute a waiver of such
\nBank153s or Issuing Bank153s right to demand such compensation; provided<\/u>
\nthat the Borrower shall not be required to compensate a Bank or Issuing Bank
\npursuant to this Section for any increased costs incurred or reductions suffered
\nmore than 120 days prior to the date that such Bank or Issuing Bank, as the case
\nmay be, notifies the Borrower of the Change in Law giving rise to such increased
\ncosts or reductions, and of such Bank153s or Issuing Bank153s intention to claim
\ncompensation therefor; provided<\/u> further<\/u> that, if the Change in Law
\ngiving rise to such increased costs or reductions is retroactive, then the
\n120-day period referred to above shall be extended to include the period of
\nretroactive effect thereof.<\/p>\n<\/p>\n SECTION 5.14. Payments and Computations<\/u>.<\/p>\n<\/p>\n (a) The Borrower shall make each payment of principal or interest in respect
\nof any Advance or under any Notes not later than 12:00 noon (Local Time) on the
\nday when due and in the currency in which such Advance was made to the Borrower,
\nto the Administrative Agent in same day funds and without set-off, counterclaim
\nor other deduction; all other payments hereunder or under the Notes shall be
\nmade in Dollars. All payments hereunder shall be made to the Administrative
\nAgent at (except as set forth in the next sentence) the Administrative Agent153s
\naddress specified in Section 11.02<\/u>, or at any other Applicable Lending
\nOffice of the Administrative Agent specified in writing by the Administrative
\nAgent to the Borrower, and, in the case of Syndicated Borrowings, shall be
\napplied ratably by the Administrative Agent among the Banks. All payments to be
\nmade by the Borrower hereunder in any currency other than Dollars shall be made
\nto the Administrative Agent at the account for payments in such currency
\nspecified by the Administrative Agent in writing to the Borrower. The
\nAdministrative Agent is hereby authorized to charge the Borrower153s account with
\nthe Administrative Agent, after notice to the Borrower of the amount to be
\ncharged, for each payment of principal, interest and fees as such payment
\nbecomes due. The Administrative Agent will promptly thereafter cause to be
\ndistributed like funds relating to such payment ratably (in accordance with all\n<\/p>\n<\/p>\n 45<\/p>\n \n
\nlike obligations then due and payable to which such payment relates) to the
\nBanks for the account of their respective Applicable Lending Offices, and like
\nfunds relating to the payment of any other amount payable to any Bank, to such
\nBank for the account of its Applicable Lending Office, in each case to be
\napplied in accordance with the terms of this Agreement.<\/p>\n<\/p>\n (b) Notwithstanding the foregoing provisions of this Section 5.14<\/u>, if,
\nafter the making of any Advance in any currency other than Dollars, currency
\ncontrol or exchange regulations are imposed in the country which issues such
\ncurrency with the result that the type of currency in which the Advance was made
\n(the “Original Currency<\/u>“) no longer exists or the Borrower is not able to
\nmake payment to the Administrative Agent for the account of the Banks in such
\nOriginal Currency, then all payments to be made by the Borrower hereunder in
\nsuch currency shall instead be made when due in Dollars in an amount equal to
\nthe Dollar Amount (as of the date of repayment) of such payment due, it being
\nthe intention of the parties hereto that the Borrower take all risks of the
\nimposition of any such currency control or exchange regulations.<\/p>\n<\/p>\n (c) All computations of interest based on the Base Rate shall, to the extent
\nsuch Base Rate is determined by reference to the Prime Rate, be made on the
\nbasis of a year of 365 or 366 days, as the case may be, and all other
\ncalculations of interest, facility fees and letter of credit fees shall be made
\non the basis of a year of 360 days, in each case for the actual number of days
\n(including the first day but excluding the last day) occurring in the period for
\nwhich such interest or fees are payable. Each determination by the
\nAdministrative Agent of an interest rate hereunder shall be conclusive and
\nbinding for all purposes in the absence of manifest error.<\/p>\n<\/p>\n (d) Whenever any payment hereunder or under any Notes shall be stated to be
\ndue on a day other than a Business Day, such payment shall be made on the next
\nsucceeding Business Day, and such extension of time shall in such case be
\nincluded in the computation of payment of interest and facility fees, as the
\ncase may be. If such extension would cause such payment with respect to a
\nEurocurrency Advance or EURIBOR Advance to be made in the next following
\ncalendar month, such payment shall be made on the immediately preceding
\napplicable Business Day and the period of time during which such payment would
\nhave been outstanding but for compliance with this provision shall not be
\nincluded in the computation of payment of interest with respect thereto.<\/p>\n<\/p>\n (e) Unless the Administrative Agent shall have received notice from the
\nBorrower prior to the date on which any payment is due to the Banks hereunder
\nthat the Borrower will not make such payment in full, the Administrative Agent
\nmay assume that the Borrower has made such payment in full to the Administrative
\nAgent on such date and the Administrative Agent may, in reliance upon such
\nassumption, cause to be distributed to each Bank on such due date an amount
\nequal to the amount then due such Bank. If and to the extent the Borrower shall
\nnot have so made such payment in full to the Administrative Agent, each Bank
\nshall repay to the Administrative Agent forthwith on demand such amount
\ndistributed to such Bank together with interest thereon, for each<\/p>\n<\/p>\n 46<\/p>\n \n
\nday from the date such amount is distributed to such Bank until the date such
\nBank repays such amount to the Administrative Agent, at the Federal Funds Rate.\n<\/p>\n<\/p>\n SECTION 5.15. Taxes<\/u>. (a) Any and all payments by the Borrower
\nhereunder or under any Notes shall be made, in accordance with Section
\n5.14<\/u>, free and clear of and without deduction for any and all present or
\nfuture taxes, levies, imposts, deductions, charges or withholdings, and all
\nliabilities with respect thereto, excluding<\/u> (i) in the case of each Bank
\nand the Administrative Agent, taxes imposed on any of its overall net income,
\nand franchise taxes imposed on it, by the jurisdiction under the laws of which
\nsuch Bank or the Administrative Agent (as the case may be) is organized or any
\npolitical subdivision thereof, (ii) in the case of each Bank, taxes imposed on
\nits net income, and franchise taxes imposed on it, by the jurisdiction of such
\nBank153s Applicable Lending Office or any political subdivision thereof, and (iii)
\nany taxes imposed on any “withholdable payment” payable to a Bank as a result of
\nthe failure of such Bank to satisfy the applicable requirements as in effect
\nafter December 31, 2012 in FATCA to establish that such payment is exempt from
\nwithholding under FATCA (all such taxes, levies, imposts, deductions, charges,
\nwithholdings and liabilities, less the exclusions described in clauses
\n(i)<\/u>, (ii)<\/u> and (iii)<\/u> above, being hereinafter referred to as
\n“Taxes<\/u>“).<\/p>\n<\/p>\n (b) In addition, the Borrower agrees to pay any present or future stamp or
\ndocumentary taxes or any other excise or property taxes, charges or similar
\nlevies which arise (i) from any payment made hereunder or under the Notes to any
\nApplicable Lending Office listed on Schedule 1.02<\/u> or to any lending or
\nother office established pursuant to Section 5.11<\/u> or otherwise in
\naccordance with this Agreement with respect to Advances made or to be made under
\nthis Agreement or (ii) from the execution or delivery of this Agreement or the
\nNotes or any amendment hereto or thereto (hereinafter referred to as “Other
\nTaxes<\/u>“).<\/p>\n<\/p>\n (c) The Borrower will indemnify each Bank and the Administrative Agent for
\nthe full amount of Taxes and Other Taxes (including, without limitation, any
\nTaxes or Other Taxes imposed by any jurisdiction on amounts payable under this
\nSection 5.15<\/u>) incurred by such Bank or the Administrative Agent (as the
\ncase may be) or any liability incurred by such Bank or the Administrative Agent
\n(as the case may be) (including penalties and interest unless caused by the
\ngross negligence or willful misconduct of such Bank or the Administrative Agent,
\nas the case may be) arising therefrom or with respect thereto, whether or not
\nsuch Taxes or Other Taxes were correctly or legally asserted. This
\nindemnification shall be made within 120 days from the date such Bank or the
\nAdministrative Agent (as the case may be) makes written demand therefor, which
\ndemand shall be made within 120 days after such Bank or the Administrative
\nAgent, as applicable, becomes aware of the imposition on it of such Tax or Other
\nTax or the incurrence by it of such liability and which demand shall
\ndemonstrate, in reasonable detail, the circumstances concerning the imposition
\nof, and the calculations used to determine, such Taxes or Other Taxes.<\/p>\n<\/p>\n (d) Without limiting the generality of the foregoing, all Banks shall deliver
\nto the Borrower and the Administrative Agent (in such number of copies
\nreasonably requested by the Borrower and the Administrative Agent) on or prior
\nto the date on which each Bank becomes a party hereto, duly completed and
\nexecuted copies of whichever of<\/p>\n<\/p>\n 47<\/p>\n \n
\nthe following is applicable in order to establish that the Banks are entitled
\nto a complete exemption from withholding on all amounts to be received by such
\nBank at any Applicable Lending Office designated by such Bank, including fees,
\npursuant to this Agreement and the Advances:<\/p>\n<\/p>\n (i) in the case of a Bank that is a U.S. Person (as such term is defined in
\nSection 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the
\n“Code<\/u>“)), IRS Form W-9 certifying that such Bank is exempt from U.S.
\nFederal backup withholding tax;<\/p>\n<\/p>\n (ii) in the case of a Non-U.S. Bank claiming the benefits of an income tax
\ntreaty to which the United States is a party (1) with respect to payments of
\ninterest under the Agreement or any Notes, IRS Form W-8BEN establishing an
\nexemption from U.S. Federal withholding Tax pursuant to the “interest” article
\nof such tax treaty and (2) with respect to any other applicable payments under
\nthis Agreement, IRS Form W-8BEN establishing an exemption from U.S. Federal
\nwithholding Tax pursuant to the “business profits” or “other income” article of
\nsuch tax treaty;<\/p>\n<\/p>\n (iii) in the case of a Non-U.S. Bank for whom payments under this Agreement
\nconstitute income that is effectively connected with such Bank153s conduct of a
\ntrade or business in the United States, IRS Form W-8ECI;<\/p>\n<\/p>\n (iv) in the case of a Non-U.S. Bank claiming the benefits of the exemption
\nfor portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN
\nand (2) a certificate substantially in the form of Exhibit 5.15(d)(iv)<\/u>
\nhereto (any such certificate, a “Section 5.15(d)(iv) Certificate<\/u>“) to the
\neffect that such Bank is not (a) a “bank” within the meaning of Section
\n881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower within
\nthe meaning of Section 881(c)(3)(B) of the Code, (c) a “controlled foreign
\ncorporation” described in Section 881(c)(3)(C) of the Code, and (d) conducting a
\ntrade or business in the United States with which the relevant interest payments
\nare effectively connected;<\/p>\n<\/p>\n (v) in the case of a Non-U.S. Bank that is not the beneficial owner of
\npayments made under this Agreement (including a partnership or a participating
\nBank) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms
\nprescribed in this subsection (d)<\/u> that would be required of each such
\nbeneficial owner or partner of such partnership if such beneficial owner or
\npartner were a Bank; provided<\/u>, however<\/u>, that if the Bank is a
\npartnership and one or more of its partners are claiming the exemption for
\nportfolio interest under Section 881(c) of the Code, such Bank may provide a
\nSection 5.15(d)(iv) Certificate on behalf of such partners; or<\/p>\n<\/p>\n (vi) any other form prescribed by law as a basis for claiming exemption from
\nU.S. Federal withholding Tax together with such supplementary<\/p>\n<\/p>\n 48<\/p>\n \n
\ndocumentation necessary to enable the Borrower or the Administrative Agent to
\ndetermine the amount of Tax (if any) required by law to be withheld.<\/p>\n<\/p>\n Thereafter and from time to time, each Bank shall submit to the Borrower such
\nadditional duly completed and signed copies of the above applicable forms (or
\nsuch successor forms as shall be adopted from time to time by the relevant
\nUnited States taxing authorities) as may be (i) requested by the Borrower from
\nsuch Bank and (ii) required under then current United States law or regulations
\nto avoid United States withholding taxes on payments in respect of all amounts
\nto be received by such Bank at any Applicable Lending Office designated by such
\nBank, including fees, pursuant to this Agreement or the Advances. If any Bank
\ndetermines, as a result of any change in applicable law, regulation or treaty,
\nor in any official application or interpretation thereof, that it is unable to
\nsubmit to the Borrower any form or certificate that such Bank is obligated to
\nsubmit pursuant to this subsection (d)<\/u>, or that such Bank is required to
\nwithdraw or cancel any such form or certificate previously submitted, such Bank
\nshall promptly notify the Borrower of such fact; provided<\/u>,
\nhowever<\/u>, that delivery of such notice shall not preclude the exercise by
\nsuch Bank of any of its rights under this Section 5.15<\/u>. No amount that
\nshall be required to be paid by the Borrower pursuant to subsections
\n(a)<\/u>, (b) <\/u>or (c)<\/u> of this Section 5.15<\/u> shall be
\npayable by the Borrower to any Bank that (i) is not, on the date this Agreement
\nis executed by such Bank, either (x) required to submit Form W-8BEN or any
\nsuccessor thereto (relating to such Bank and entitling it to a complete
\nexemption from withholding on all amounts to be received by such Bank at any
\nApplicable Lending Office designated by such Bank, including fees, pursuant to
\nthis Agreement and the Advances) or Form W-8ECI or any successor thereto
\n(relating to all amounts to be received by such Bank at any Applicable Lending
\nOffice designated by such Bank, including fees, pursuant to this Agreement and
\nthe Advances) and a Section 5.15(d)(iv) Certificate, as the case may be, or (y)
\na United States person (as such term is defined in Section 7701(a)(30) of the
\nCode), or (ii) shall have failed to submit to the Borrower any form or
\ncertificate that such Bank shall have been required to file pursuant to this
\nsubsection and shall have been entitled to file under applicable law.<\/p>\n<\/p>\n (e) Any Bank claiming additional amounts payable pursuant to this Section
\n5.15<\/u> shall use reasonable efforts to change the jurisdiction of its office
\nor Applicable Lending Office if the making of such change would avoid the need
\nfor, or reduce the amount of, any additional amounts that may thereafter accrue
\nand would not, in the reasonable judgment of such Bank, be otherwise materially
\ndisadvantageous to such Bank.<\/p>\n<\/p>\n (f) If any party determines, in its sole discretion exercised in good faith,
\nthat it has received a refund of any Taxes or Other Taxes as to which it has
\nbeen indemnified pursuant to this Section 5.15<\/u> (including additional
\namounts paid pursuant to this Section 5.15<\/u>), it shall pay to the
\nindemnifying party an amount equal to such refund (but only to the extent of
\nindemnity payments made under this Section 5.15<\/u> with respect to the Taxes
\nor Other Taxes giving rise to such refund), net of all out-of-pocket expenses
\n(including any Taxes or Other Taxes) of such indemnified party and without
\ninterest (other than any interest paid by the relevant Governmental Authority
\nwith respect to such refund). Such indemnifying party, upon the request of such
\nindemnified party, shall<\/p>\n<\/p>\n 49<\/p>\n \n
\nrepay to such indemnified party the amount paid to such indemnified party
\npursuant to the previous sentence (plus any penalties, interest or other charges
\nimposed by the relevant Governmental Authority) in the event such indemnified
\nparty is required to repay such refund to such Governmental Authority.
\nNotwithstanding anything to the contrary in this Section 5.15(f)<\/u>, in no
\nevent will any indemnified party be required to pay any amount to any
\nindemnifying party pursuant to this Section 5.15(f)<\/u> if such payment would
\nplace such indemnified party in a less favorable position (on a net after-Tax
\nbasis) than such indemnified party would have been in if the indemnification
\npayments or additional amounts giving rise to such refund had never been paid.
\nThis Section 5.15(f)<\/u> shall not be construed to require any indemnified
\nparty to make available its Tax returns (or any other information relating to
\nits Taxes or Other Taxes which it deems confidential) to the indemnifying party
\nor any other Person.<\/p>\n<\/p>\n (g) Each party153s obligations under this Section 5.15<\/u> shall survive any
\nassignment of rights by, or the replacement of, a Bank, the termination of the
\nCommitments and the repayment, satisfaction or discharge of all other
\nobligations under this Agreement or any Notes.<\/p>\n<\/p>\n SECTION 5.16. Noteless Agreement; Evidence of Indebtedness<\/u>.<\/p>\n<\/p>\n (a) Each Bank shall maintain in accordance with its usual practice an account
\nor accounts evidencing the indebtedness of the Borrower to such Bank resulting
\nfrom each Advance made by such Bank from time to time, including the amounts of
\nprincipal and interest payable and paid to such Bank from time hereunder.<\/p>\n<\/p>\n (b) The Administrative Agent shall maintain accounts in which it will record
\n(i) the amount of each Advance made hereunder, the currency in which such
\nAdvance is denominated and Type thereof and the Interest Period, if any, with
\nrespect thereto, (ii) the amount of any principal or interest due and payable or
\nto become due and payable from the Borrower to each Bank hereunder and (iii) the
\namount of any sum received by the Administrative Agent hereunder from the
\nBorrower and each Bank153s share thereof.<\/p>\n<\/p>\n (c) The entries maintained in the accounts maintained pursuant to
\nsubsections (a)<\/u> and (b)<\/u> above shall be prima<\/u> facie<\/u>
\nevidence of the existence and amounts of the Advances therein recorded;
\nprovided<\/u>, however<\/u>, that the failure of the Administrative Agent or
\nany Bank to maintain such accounts or any error therein shall not in any manner
\naffect the obligation of the Borrower to repay the Borrowings in accordance with
\ntheir terms.<\/p>\n<\/p>\n (d) Any Bank may request that its Advances be evidenced by a promissory note
\n(each, a “Note<\/u>“). In such event, the Borrower shall prepare, execute and
\ndeliver to such Bank a Note or separate Notes evidencing such Syndicated
\nAdvances and Competitive Bid Advances, at such Bank153s request, payable to the
\norder of such Bank in a form or forms supplied by the Administrative Agent.
\nThereafter, the Advances evidenced by such Note or Notes and interest thereon
\nshall at all times (including after any assignment pursuant to Section
\n11.06<\/u>) be represented by one or more Notes payable to the order of the payee
\nnamed therein or any assignee pursuant to Section 11.06<\/u>, except<\/p>\n<\/p>\n 50<\/p>\n \n
\nto the extent that any such Bank or assignee subsequently returns any such
\nNote for cancellation and requests that such Advances once again be evidenced as
\ndescribed in subsections (a)<\/u> and (b)<\/u> above.<\/p>\n<\/p>\n SECTION 5.17. Sharing of Payments, Etc<\/u>. Except for payments made
\npursuant to Section 5.18<\/u>, if any Bank shall obtain any payment (whether
\nvoluntary, involuntary, through the exercise of any right of set-off, or
\notherwise) on account of any Advance made by it or any L\/C Interest in excess of
\nits ratable share of all payments obtained by Banks on account of, as
\napplicable, the Advances comprising the Borrowing (whether the Borrowing to
\nwhich it shall be applied is a Syndicated Borrowing or a Competitive Bid
\nBorrowing) to which such Advance relates or in respect of the Letter of Credit
\nto which such L\/C Interest relates, such Bank shall forthwith purchase from the
\nother Banks which shall then have Advances outstanding comprising a part of such
\nBorrowing participations in the Advances comprising a part of such Borrowing
\n(or, as applicable, purchase from the other Banks participations in the L\/C
\nInterests in the related Letter of Credit) as shall be necessary to cause such
\npurchasing Bank to share the excess payment (net of any expenses which may be
\nincurred by such Bank in obtaining or preserving such excess payment) ratably
\nwith respect to such Borrowing or Letter of Credit with each of such other
\nBanks. If all or any portion of such excess payment is thereafter recovered from
\nsuch purchasing Bank, such purchase from each selling Bank shall be rescinded
\nand such selling Bank shall repay to the purchasing Bank the purchase price to
\nthe extent of such recovery together with an amount equal to such selling Bank153s
\nratable share (according to the proportion of (i) the amount of such selling
\nBank153s required repayment to (ii) the total amount so recovered from the
\npurchasing Bank) of any interest or other amount paid or payable by the
\npurchasing Bank in respect of the total amount so recovered. The Borrower agrees
\nthat any Bank so purchasing a participation from another Bank pursuant to this
\nSection 5.17<\/u> may, to the fullest extent permitted by law, exercise all
\nits rights of payment (including the right of set-off) with respect to such
\nparticipation as fully as if such Bank were the direct creditor of the Borrower
\nin the amount of such participation. Nothing contained herein shall require any
\nBank to exercise any right it may have of set-off, bankers153 lien, counterclaim
\nor similar right or shall affect the right of any Bank to exercise, and retain
\nthe benefits of exercising, any such right with respect to any other
\nindebtedness or obligation of the Borrower not evidenced by this Agreement or
\nthe Notes. If under any applicable bankruptcy, insolvency or other similar law,
\nany Bank obtains a secured claim in lieu of a set-off or other payment to which
\nthis Section 5.17<\/u> would apply, such Bank shall, to the extent
\npracticable, exercise its rights in respect of such secured claim in a manner
\nconsistent with the rights of the Banks entitled under this Section 5.17<\/u>
\nto share in the benefits of any recovery on such secured claim.<\/p>\n<\/p>\n SECTION 5.18. Termination and Prepayment with Respect to any Bank<\/u>.\n<\/p>\n<\/p>\n (a) In addition to the right of the Borrower to terminate in whole or reduce
\nratably the unused portion of the Commitments as described in Section
\n5.05<\/u> and the right of the Borrower to ratably prepay Advances as described
\nin Section 5.12<\/u>, the Borrower shall have the right to terminate the
\nunused portion of the Commitment of any Bank and to prepay all outstanding
\nAdvances made by such Bank in the manner described in this Section 5.18<\/u>
\nif a Bank becomes a Defaulting Bank or a Non-Consenting Bank or if the Borrower
\nshall have received notice (a “Special Notice<\/u>“) that such Bank (i) cannot
\nextend a Eurocurrency Rate Advance and\/or EURIBOR Rate Advance and shall
\nexercise<\/p>\n<\/p>\n 51<\/p>\n \n
\nits rights pursuant to Section 5.01(a)<\/u>, (ii) claims additional
\ninterest pursuant to Section 5.08<\/u>, (iii) claims reimbursement for
\nincreased costs or reduced returns pursuant to Section 5.13<\/u>, (iv) claims
\nreimbursement for Taxes or Other Taxes pursuant to Section 5.15<\/u> or (v)
\nelects not to make an Advance in the applicable Agreed Currency pursuant to
\nSection 11.12<\/u>.<\/p>\n<\/p>\n (b) Upon receipt by the Borrower of a Special Notice from any Bank or upon a
\nBank becoming a Defaulting Bank or a Non-Consenting Bank, the Borrower may elect
\nto terminate the unused portion of the Commitment of such Bank by giving notice
\nthereof (a “Termination Notice<\/u>“) to such Bank and to the Administrative
\nAgent on or before the thirtieth day following the date of such Special Notice,
\nspecifying therein (i) the name of such Bank (a “Terminated Bank<\/u>“), (ii)
\nthe proposed effective date of termination (“Bank Termination Date<\/u>“) of
\nthe unused portion of such Terminated Bank153s Commitment, which date shall not in
\nany event be less than five (5) Business Days following the date of such
\nTermination Notice, and (iii) if applicable, one or more commercial banks (each,
\na “Successor Bank<\/u>“), each such Successor Bank having a combined capital,
\nsurplus (or its equivalent) and undivided profits in an amount not less than
\nU.S. $500,000,000 (or its equivalent in another currency), which Successor Bank
\nor Successor Banks shall have agreed, in the aggregate, to succeed to the entire
\nCommitment of such Terminated Bank on the Bank Termination Date.<\/p>\n<\/p>\n (c) Unless the Borrower shall have elected, as evidenced by its Termination
\nNotice, to prepay all the Advances made by a Terminated Bank outstanding as of
\nthe Bank Termination Date, any EURIBOR Advance or Eurocurrency Advance (each, a
\n“TB Advance<\/u>“) made by such Terminated Bank having an Interest Period
\nending after the Bank Termination Date shall remain outstanding until the last
\nday of such Interest Period (unless required to be paid earlier in accordance
\nwith the terms of this Agreement). On the last day of the then current Interest
\nPeriod in respect of each TB Advance, the Successor Bank shall extend an Advance
\nto the Borrower in a principal amount corresponding to such TB Advance, and
\nhaving an Interest Period of the type specified in the Notice of Interest Rate
\nElection that would otherwise have applied to such TB Advance, and the proceeds
\nof such Advance from the Successor Bank shall be used by the Borrower to repay
\nsuch TB Advance to the Terminated Bank. The Successor Bank or Successor Banks
\nspecified by the Borrower in a Termination Notice shall have agreed, prior to
\nthe Bank Termination Date, to succeed, in the aggregate, to the entire
\nCommitment of such Terminated Bank on the Bank Termination Date which succession
\nshall, with respect to the unused portion of such Terminated Bank153s Commitment
\nas of such Bank Termination Date, become effective as of the Bank Termination
\nDate and, with respect to the remaining portion of such Terminated Bank153s
\nCommitment, become effective as and when such Terminated Bank153s Advances are
\nrepaid.<\/p>\n<\/p>\n (d) If the Borrower shall have elected, as evidenced by its Termination
\nNotice, to prepay all the Advances made by a Terminated Bank outstanding as of
\nthe Bank Termination Date, the Successor Bank or Successor Banks shall in the
\naggregate extend to the Borrower, on the Bank Termination Date, Advances (with
\ninterest at a rate to be agreed upon by the Borrower and each Successor Bank)
\ncorresponding in respective amounts to each Advance being prepaid as of such
\ndate, each of which Advances shall<\/p>\n<\/p>\n 52<\/p>\n \n
\nhave an Interest Period, if any, beginning on the Bank Termination Date and
\nending on the last day of the Interest Period of the Advance being prepaid to
\nwhich it corresponds; provided<\/u> that, upon the mutual agreement of the
\nBorrower and the Successor Bank (or Successor Banks, as applicable) and notice
\nthereof to the Administrative Agent, the Borrower may elect not to require the
\nSuccessor Bank (or Successor Banks, as applicable) to extend Competitive Bid
\nAdvances in substitution for the Competitive Bid Advances extended by the
\nTerminated Bank.<\/p>\n<\/p>\n (e) Each such termination pursuant to this Section 5.18<\/u> shall be
\neffective on the Bank Termination Date proposed by the Borrower in the related
\nTermination Notice if (i) no Event of Default shall have occurred prior to such
\ndate and be continuing on such date, (ii) in the event the Borrower shall have
\nelected to prepay all Advances made by such Terminated Bank outstanding as of
\nsuch date, (A) the Borrower shall have prepaid the outstanding aggregate amount
\nof all Advances made by the Terminated Bank, together with accrued interest to
\nsuch date on the amount prepaid and all other amounts payable to such Bank as of
\nsuch date and (B) the Successor Bank or Successor Banks shall have extended to
\nthe Borrower Advances equal in aggregate amount to the Advances of the
\nTerminated Bank being prepaid as required pursuant to Section 5.18(d)<\/u>,
\nand (iii) the Administrative Agent shall have received evidence reasonably
\nsatisfactory to the Administrative Agent that the Successor Bank or Successor
\nBanks shall have agreed in the aggregate to succeed to the entire Commitment of
\nthe Terminated Bank in accordance with this Section 5.18<\/u>. On a Bank
\nTermination Date, the applicable Successor Bank (or Successor Banks, as
\napplicable) shall succeed to the L\/C Interests of the Terminated Bank, and the
\nTerminated Bank shall thereafter cease to have any L\/C Interest or any
\nparticipation in, or liability for any drawings made under, any Letter of
\nCredit.<\/p>\n<\/p>\n (f) Subject to subsection (e)<\/u> above, on the Bank Termination Date, (i)
\neach Successor Bank shall become a party to this Agreement as if such Successor
\nBank shall have been named on the signature pages hereof, and such Successor
\nBank shall have all the rights and obligations of a “Bank” hereunder and (ii)
\nthe Terminated Bank shall have no further Commitment under this Agreement (other
\nthan with respect to Advances, if any, made by such Bank which remain
\noutstanding after such date) and shall no longer be a “Bank” under this
\nAgreement for any purpose (other than with respect to Advances made by such Bank
\nwhich remain outstanding after such date) except insofar as it shall be entitled
\nto any payment or indemnification, or be obligated to make any indemnification,
\non account of any event which shall have occurred, or any right or liability
\nwhich shall have arisen, on or prior to the date of repayment of such
\noutstanding Advances. The termination of any Bank153s Commitment and the
\nprepayment of such Bank153s Advances pursuant to this Section 5.18<\/u> shall
\nnot relieve or satisfy the obligations of the Borrower to make any such
\nprepayments free and clear of all Taxes, to reimburse such Bank for all Other
\nTaxes and for all increased costs pursuant to Section 5.13<\/u>, or to comply
\nwith all other terms and conditions of this Agreement (including, without
\nlimitation, Section 11.04<\/u>). A Successor Bank shall be subject to the
\nSyndicated Reduction (or, in the case of more than one Successor Bank, its
\nratable share of the Syndicated Reduction) of the Terminated Bank it succeeds
\nupon the Bank Termination Date applicable to such successor.<\/p>\n<\/p>\n 53<\/p>\n \n
\nSECTION 5.19. Defaulting Banks<\/u>. Notwithstanding any provision of this
\nAgreement to the contrary, if any Bank becomes a Defaulting Bank then the
\nfollowing provisions shall apply for so long as such Bank is a Defaulting Bank:\n<\/p>\n<\/p>\n (a) Fees shall cease to accrue on the unfunded Commitment of such Defaulting
\nBank pursuant to Section 5.04(a)<\/u>. Each Defaulting Bank shall be entitled
\nto receive letter of credit fees under Section 5.04(c)<\/u> for any period
\nduring which such Bank is a Defaulting Bank only to the extent allocable to its
\nL\/C Interest of the stated amount of Letters of Credit for which it has provided
\ncash collateral to the Administrative Agent.<\/p>\n<\/p>\n (b) The Commitments, Advances and L\/C Interests of such Defaulting Bank shall
\nnot be included in determining whether the Majority Banks have taken or may take
\nany action hereunder (including any consent to any amendment or waiver pursuant
\nto Section 11.01<\/u>) which requires Majority Banks consent.<\/p>\n<\/p>\n (c) All or any part of any L\/C Interest shall be reallocated among the
\nnon-Defaulting Banks in accordance with their respective Commitments but only to
\nthe extent such reallocation does not cause any non-Defaulting Bank to exceed
\nits Commitment; provided<\/u> that if such reallocation cannot, or can only
\npartially, be effected, the Borrower shall, without prejudice to any right or
\nremedy available to it hereunder or under law, within one (1) Business Day
\nfollowing notice by the Administrative Agent cash collateralize for the benefit
\nof each Issuing Bank the Borrower153s obligations corresponding to such Defaulting
\nBank153s L\/C Interest (after giving effect to any partial reallocation described
\nin this clause (c)<\/u>) in accordance with the procedures set forth in
\nSection 9.02<\/u> for so long as such L\/C Interest is outstanding.
\nNotwithstanding the foregoing, reallocation of L\/C Interests in accordance with
\nthe terms of this Agreement shall not constitute a waiver or release of claims
\nagainst any such Defaulting Bank.<\/p>\n<\/p>\n (d) If the Borrower cash collateralizes any portion of such Defaulting Bank153s
\nL\/C Interest pursuant to clause (c)<\/u> above, the Borrower shall not be
\nrequired to pay any fees to such Defaulting Bank pursuant to Section
\n5.04(c)<\/u> with respect to such Defaulting Bank153s L\/C Interest during the
\nperiod such Defaulting Bank153s L\/C Interest is so cash collateralized.<\/p>\n<\/p>\n (e) If the L\/C Interest of the non-Defaulting Banks are reallocated pursuant
\nto clause (c)<\/u> above, then the fees payable to the Banks pursuant to
\nSections 5.04(a)<\/u> and (c)<\/u> shall be adjusted in accordance with such
\nnon-Defaulting Banks153 applicable L\/C Interests.<\/p>\n<\/p>\n (f) If all or any portion of such Defaulting Bank153s L\/C Interest is neither
\ncash collateralized nor reallocated pursuant to clause (c)<\/u> above, then,
\nwithout prejudice to any rights or remedies of the Issuing Banks or any other
\nBank hereunder, all facility fees that otherwise would have been payable to such
\nDefaulting Bank (solely with respect to the portion of such Defaulting Bank153s
\nCommitment that was utilized by such L\/C Interest) and letter of credit fees
\npayable under Section 5.04(c)<\/u> with respect to such Defaulting Bank153s L\/C
\nInterest shall be payable, on a pro rata basis, to the Issuing Banks until each
\nsuch L\/C Interest is cash collateralized and\/or reallocated.<\/p>\n<\/p>\n 54<\/p>\n \n
\n(g) So long as such Bank is a Defaulting Bank, the Issuing Banks shall not be
\nrequired to issue, amend or increase any Letter of Credit, unless, in each case,
\nthe applicable Issuing Bank is satisfied that the related exposure will be 100%
\ncovered by the non-Defaulting Banks, cash collateral provided pursuant to
\nclause fifth<\/em><\/u> of Section 5.19(h)<\/u> below and\/or cash
\ncollateral will be provided by the Borrower in accordance with Section
\n5.19(c)<\/u>.<\/p>\n<\/p>\n(h) Any payment of principal, interest, fees or other amounts received by the
\nAdministrative Agent hereunder for the account of such Defaulting Bank (whether
\nvoluntary or mandatory, at maturity, pursuant to Article IX<\/u> or otherwise)
\nor received by the Administrative Agent from a Defaulting Bank pursuant to
\nSection 11.05<\/u> shall be applied at such time or times as may be determined
\nby the Administrative Agent as follows: first<\/em>, to the payment of any
\namounts owing by such Defaulting Bank to the Administrative Agent hereunder;
\nsecond<\/em>, to the payment on a pro rata basis of any amounts owing by such
\nDefaulting Bank to any Issuing Bank hereunder; third<\/em>, to cash
\ncollateralize the Issuing Banks153 exposure with respect to such Defaulting Bank;
\nfourth<\/em>, as the Borrower may request (so long as no Event of Default or
\nUnmatured Event of Default exists), to the funding of any Advance in respect of
\nwhich such Defaulting Bank has failed to fund its portion thereof as required by
\nthis Agreement; fifth<\/em>, if so determined by the Administrative Agent and
\nthe Borrower, to be held in a deposit account and released pro rata in order to
\n(x) satisfy such Defaulting Bank153s potential future funding obligations with
\nrespect to Advances under this Agreement and (y) cash collateralize the Issuing
\nBanks153 future exposure with respect to such Defaulting Bank with respect to
\nfuture Letters of Credit issued under this Agreement; sixth<\/em>, to the
\npayment of any amounts owing to the Banks or the Issuing Banks as a result of
\nany judgment of a court of competent jurisdiction obtained by any Bank or the
\nIssuing Banks against such Defaulting Bank as a result of such Defaulting Bank153s
\nbreach of its obligations under this Agreement; seventh<\/em>, so long as no
\nEvent of Default or Unmatured Event of Default exists, to the payment of any
\namounts owing to the Borrower as a result of any judgment of a court of
\ncompetent jurisdiction obtained by the Borrower against such Defaulting Bank as
\na result of such Defaulting Bank153s breach of its obligations under this
\nAgreement; and eighth<\/em>, to such Defaulting Bank or as otherwise directed
\nby a court of competent jurisdiction; provided<\/u> that if (x) such payment
\nis a payment of the principal amount of any Advances or Reimbursement
\nObligations in respect of which such Defaulting Bank has not fully funded its
\nproportionate share, and (y) such Advances were made or the related Letters of
\nCredit were issued at a time when the conditions set forth in Section
\n6.02<\/u> were satisfied or waived, such payment shall be applied solely to pay
\nthe Advances of, and Reimbursement Obligations owed to, all non-Defaulting Banks
\non a pro rata basis prior to being applied to the payment of any Advances of, or
\nReimbursement Obligations owed to, such Defaulting Bank until such time as all
\nAdvances and funded and unfunded participations in L\/C Obligations are held by
\nthe Banks pro rata in accordance with the Commitments without giving effect to
\nSection 5.19(c)<\/u>. Any payments, prepayments or other amounts paid or
\npayable to a Defaulting Bank that are applied (or held) to pay amounts owed by a
\nDefaulting Bank or to post cash collateral pursuant to this Section
\n5.19(h)<\/u> shall be deemed paid to and redirected by such Defaulting Bank, and
\neach Bank irrevocably consents hereto.<\/p>\n<\/p>\n55<\/p>\n \n
\n(i) In the event that the Administrative Agent, the Borrower and each Issuing
\nBank agrees that a Defaulting Bank has adequately remedied all matters that
\ncaused such Bank to be a Defaulting Bank, then the Advances and L\/C Interests of
\nthe Banks shall be readjusted to reflect the inclusion of such Bank153s Commitment
\nand on such date such Bank shall purchase at par such of the Advances of the
\nother Banks as the Administrative Agent shall determine may be necessary in
\norder for such Bank to hold such Advances in accordance with its applicable
\nCommitments.<\/p>\n<\/p>\n (j) The Borrower may terminate the unused amount of the Commitment of any
\nBank that is a Defaulting Bank upon not less than three Business Days153 prior
\nnotice to the Administrative Agent (which shall promptly notify the Banks
\nthereof), and in such event the provisions of Section 5.19(h)<\/u> will apply
\nto all amounts thereafter paid by the Borrower for the account of such
\nDefaulting Bank under this Agreement (whether on account of principal, interest,
\nfees, indemnity or other amounts); provided that (i) no Event of Default shall
\nhave occurred and be continuing, and (ii) such termination shall not be deemed
\nto be a waiver or release of any claim the Borrower, the Administrative Agent,
\nany Issuing Bank or any Bank may have against such Defaulting Bank.<\/p>\n<\/p>\n ARTICLE VI<\/p>\n \n CONDITIONS PRECEDENT<\/p>\n \n SECTION 6.01. Conditions Precedent to Effectiveness of Agreement<\/u>. The
\neffectiveness of this Agreement and the obligation of each Bank to make its
\ninitial Advance or for an Issuing Bank to issue the initial Letter of Credit
\nhereunder (whichever shall first be requested by the Borrower) is subject to the
\ncondition precedent that the Administrative Agent shall have received all of the
\nfollowing:<\/p>\n<\/p>\n (a) Certified copies of the resolutions of the Board of Directors of the
\nBorrower approving this Agreement and any Notes, and of all documents evidencing
\nother necessary corporate action with respect to this Agreement and any Notes.\n<\/p>\n<\/p>\n (b) A certificate of the Secretary or an Assistant Secretary of the Borrower
\ncertifying the names and true signatures of the officers of the Borrower
\nauthorized to sign this Agreement and any Notes and the other documents or
\ncertificates to be delivered pursuant to this Agreement.<\/p>\n<\/p>\n (c) A certificate, signed by the chief financial officer of the Borrower,
\nstating that as of the date hereof (i) all representations and warranties in
\nthis Agreement are correct in all material respects except to the extent such
\nrepresentations and warranties specifically refer to an earlier date, in which
\ncase they shall be true and correct in all material respects as of such earlier
\ndate, (ii) no Event of Default or Unmatured Event of Default has occurred and is
\ncontinuing and (iii) there are no unreimbursed drawings under any Existing
\nLetter of Credit.<\/p>\n<\/p>\n (d) A favorable opinion of the General Counsel or Associate General Counsel
\nof the Borrower, substantially in the form set forth in Exhibit 6.01(d)<\/u>
\nhereto.<\/p>\n<\/p>\n 56<\/p>\n \n
\nSECTION 6.02. Conditions Precedent to Each Borrowing<\/u>. The obligation
\nof each Bank to make an Advance on the occasion of each Borrowing (including the
\nFirst Borrowing) or for any Issuing Bank to issue any Letter of Credit shall be
\nsubject to the additional conditions precedent that on the date of such
\nBorrowing or issuance of such Letter of Credit (a) immediately before and after
\ngiving effect to such Borrowing and to the application of proceeds therefrom, or
\n(as applicable) immediately before and after the issuance of such Letter of
\nCredit, the following statements shall be true (and each of the giving of the
\napplicable Notice of Borrowing and the acceptance by the Borrower of the
\nproceeds of such Borrowing, or (as applicable) the submission of a request for
\nissuance of a Letter of Credit, shall be deemed to constitute a representation
\nand warranty by the Borrower that on the date of such Borrowing or such
\nissuance, immediately before and after giving effect thereto and to the
\napplication of the proceeds therefrom (in the case of a Borrowing), such
\nstatements are true):<\/p>\n<\/p>\n (i) The representations and warranties contained in Section 7.01<\/u>
\n(other than subsections (e)<\/u>, (f)<\/u> and (i)<\/u> thereof) are
\ncorrect in all material respects on and as of the date of such Borrowing as
\nthough made on and as of such date (except to the extent such representations
\nand warranties specifically refer to an earlier date, in which case they shall
\nbe true and correct in all material respects as of such earlier date);<\/p>\n<\/p>\n (ii) No event has occurred and is continuing, or would result from such
\nBorrowing (or from the application of the proceeds therefrom) or from the
\nissuance of such Letter of Credit, which constitutes an Event of Default or an
\nUnmatured Event of Default; and<\/p>\n<\/p>\n (iii) The Facility Usage at such time does not exceed the Aggregate
\nCommitments at such time,<\/p>\n<\/p>\n and (b) the Administrative Agent shall have received such other documents as
\nany Bank through the Administrative Agent may reasonably request related to
\nclauses (a)(i)<\/u> or (a)(ii)<\/u> above.<\/p>\n<\/p>\n SECTION 6.03. Termination of Existing Credit Agreement<\/u>. The Borrower
\nhereby terminates the commitments of all lenders under the Existing Credit
\nAgreement and represents to the Administrative Agent and the Banks that all
\noutstanding obligations, if any, under the Existing Credit Agreement have been
\nrepaid in full except for the obligations with respect to the Existing Letters
\nof Credit which shall be deemed Letters of Credit outstanding under this
\nAgreement as of the date hereof. Each of the Banks party to this Agreement which
\nis also a lender or, with respect to JPMorgan Chase Bank, National Association,
\nthe administrative agent and a lender, under the Existing Credit Agreement
\nhereby agrees that, for purposes of the Existing Credit Agreement, the
\ntermination set forth in the preceding sentence is sufficient to terminate the
\nobligations of the Borrower under the Existing Credit Agreement and hereby
\nwaives receipt of any additional written notice and satisfaction of any other
\ncondition required to terminate the Existing Credit Agreement in accordance with
\nits terms.<\/p>\n<\/p>\n 57<\/p>\n \n
\nARTICLE VII<\/p>\n \n REPRESENTATIONS AND WARRANTIES<\/p>\n \n SECTION 7.01. Representations and Warranties of the Borrower<\/u>. The
\nBorrower represents and warrants as follows:<\/p>\n<\/p>\n (a) Corporate Existence and Standing<\/u>. The Borrower and each Material
\nSubsidiary is a corporation duly incorporated, validly existing and in good
\nstanding under the laws of its jurisdiction of incorporation and has all
\nrequisite authority to conduct its business in each jurisdiction in which the
\nfailure so to qualify would have a material adverse effect on the financial
\ncondition or operations of the Borrower.<\/p>\n<\/p>\n (b) Authorization; No Violation<\/u>. The execution, delivery and
\nperformance by the Borrower of this Agreement and the Notes are within the
\nBorrower153s corporate powers, have been duly authorized by all necessary
\ncorporate action, and do not contravene (i) the Borrower153s charter or by-laws or
\n(ii) any law or any contractual restriction binding on or affecting the
\nBorrower.<\/p>\n<\/p>\n (c) Governmental Consents<\/u>. No authorization or approval or other
\naction by, and no notice to or filing with, any Governmental Authority or
\nregulatory body is required for the due execution, delivery and performance by
\nthe Borrower of this Agreement or any Notes.<\/p>\n<\/p>\n (d) Validity<\/u>. This Agreement is, and any Notes when delivered will be,
\nthe legal, valid and binding obligations of the Borrower enforceable against the
\nBorrower in accordance with their respective terms, subject to the effect of any
\napplicable bankruptcy, insolvency, reorganization, moratorium or similar law
\naffecting creditors153 rights generally and to the effect of general principles of
\nequity (regardless of whether such enforceability is considered in a proceeding
\nin equity or at law).<\/p>\n<\/p>\n (e) Litigation<\/u>. Except as disclosed by the Borrower in its SEC filings
\nprior to the date hereof, there is no pending or, to the knowledge of the
\nBorrower, threatened action or proceeding affecting the Borrower or any of its
\nSubsidiaries before any court, governmental agency or arbitrator, which could
\nreasonably be expected to have a material adverse effect on the financial
\ncondition or operations of the Borrower or which purports to affect the
\nlegality, validity or enforceability of this Agreement or any Note to be
\ndelivered by it.<\/p>\n<\/p>\n (f) Financial Statements; No Material Adverse Change<\/u>. The Consolidated
\nbalance sheet at December 31, 2010, and the related Consolidated statements of
\nincome, cash flows and shareholder153s equity and comprehensive income for the
\nperiod then ended of the Borrower and its Consolidated Subsidiaries present
\nfairly in all material respects the financial condition of the Borrower and its
\nConsolidated Subsidiaries at December 31, 2010, and the results of the
\noperations and cash flows of the Borrower and its Consolidated Subsidiaries for
\nthe year then ended, in conformity with generally accepted accounting principles
\napplied on a basis consistent with that of the preceding year except<\/p>\n<\/p>\n 58<\/p>\n \n
\nas discussed in Note 1 to the Consolidated financial statements. Since
\nDecember 31, 2010, except as disclosed in filings with the SEC prior to the date
\nof this Agreement, there has been no material adverse change in such financial
\ncondition or operations.<\/p>\n<\/p>\n (g) Investment Company Act<\/u>. The Borrower is not an “investment
\ncompany” as defined in, or subject to regulation under, the Investment Company
\nAct of 1940, as amended.<\/p>\n<\/p>\n (h) Regulation U<\/u>. Neither the Borrower nor any of its Subsidiaries is
\nengaged as a substantial part of its activities in the business of purchasing or
\ncarrying Margin Stock. The value of the Margin Stock owned directly or
\nindirectly by the Borrower or any Subsidiary which is subject to any arrangement
\n(as such term is used in Section 221.2(g) of Regulation U issued by the Board of
\nGovernors of the Federal Reserve System) hereunder is less than an amount equal
\nto twenty-five percent (25%) of the value of all assets of the Borrower and\/or
\nsuch Subsidiary subject to such arrangement.<\/p>\n<\/p>\n (i) Environmental Matters<\/u>. The operations of the Borrower and each
\nMaterial Subsidiary comply in all material respects with all Environmental Laws,
\nthe noncompliance with which would materially adversely affect the financial
\ncondition or operations of the Borrower.<\/p>\n<\/p>\n ARTICLE VIII<\/p>\n \n COVENANTS<\/p>\n \n SECTION 8.01. Affirmative Covenants of the Borrower<\/u>. So long as any
\nAdvance shall remain unpaid, any L\/C Obligations shall remain outstanding or any
\nBank shall have any Commitment, the Borrower will:<\/p>\n<\/p>\n (a) Payment of Taxes, Etc<\/u>. Pay and discharge, and cause each Material
\nSubsidiary to pay and discharge, before the same shall become delinquent, (i)
\nall taxes, assessments and governmental charges or levies imposed upon it or
\nupon its income, profit or property, and (ii) all lawful claims which, if
\nunpaid, might by law become a lien upon its property; provided<\/u>,
\nhowever<\/u>, that neither the Borrower nor any Material Subsidiary shall be
\nrequired to pay or discharge any such tax, assessment, charge or claim which is
\nbeing contested in good faith and by proper proceedings and with respect to
\nwhich the Borrower shall have established appropriate reserves in accordance
\nwith generally accepted accounting principles.<\/p>\n<\/p>\n (b) Maintenance of Insurance<\/u>. Maintain, and cause each Material
\nSubsidiary to maintain, insurance with responsible and reputable insurance
\ncompanies or associations in such amounts and covering such risks as is usually
\ncarried by (or, as applicable, self-insure in a manner and to an extent not
\ninconsistent with conventions observed by) companies engaged in similar
\nbusinesses and owning similar properties in the same general areas in which the
\nBorrower or such Material Subsidiary operates.<\/p>\n<\/p>\n 59<\/p>\n \n
\n(c) Preservation of Corporate Existence, Etc<\/u>. Preserve and maintain,
\nand cause each Material Subsidiary to preserve and maintain, its corporate
\nexistence, rights (charter and statutory), and franchises, except as otherwise
\npermitted by Section 8.02(c)<\/u>; provided<\/u>, however<\/u>, that
\nneither the Borrower nor any Material Subsidiary shall be required to preserve
\nany right or franchise if the Board of Directors of the Borrower shall determine
\nthat the preservation thereof is no longer desirable in the conduct of business
\nof the Borrower or such Material Subsidiary, as the case may be, and that the
\nloss thereof is not materially adverse to the financial condition or operations
\nof the Borrower.<\/p>\n<\/p>\n (d) Compliance with Laws, Etc<\/u>. Comply, and cause each Material
\nSubsidiary to comply, with the requirements of all applicable laws, rules,
\nregulations and orders of any Governmental Authority (including, without
\nlimitation, all Environmental Laws), noncompliance with which would materially
\nadversely affect the financial condition or operations of the Borrower.<\/p>\n<\/p>\n (e) Keeping of Books<\/u>. Keep, and cause each Material Subsidiary to
\nkeep, proper books of record and account, in which full and correct entries
\nshall be made of all financial transactions and the assets and business of the
\nBorrower and each Material Subsidiary in accordance with generally accepted
\naccounting principles in effect from time to time.<\/p>\n<\/p>\n (f) Reporting Requirements<\/u>. Furnish to the Administrative Agent in
\nsufficient copies for distribution to each Bank:<\/p>\n<\/p>\n (i) As soon as available and in any event within the earlier of (A) five (5)
\ndays after the time period specified by the SEC under the Exchange Act for
\nquarterly reporting or (B) fifty-five (55) days after the end of each of the
\nfirst three (3) quarters of each fiscal year of the Borrower, a Consolidated
\nbalance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
\nsuch quarter and a Consolidated statement of income and cash flows (or
\nConsolidated statement of changes in financial position, as the case may be) of
\nthe Borrower and its Consolidated Subsidiaries for the period commencing at the
\nend of the previous fiscal year and ending with the end of such quarter,
\ncertified by the chief financial officer of the Borrower (it being understood
\nthat the certification provided by the chief financial officer pursuant to
\nSection 906 of the Sarbanes-Oxley Act of 2002 is acceptable for this purpose);
\nprovided<\/u>, however<\/u>, that at any time the Borrower shall be subject
\nto the reporting requirements of Section 13 or Section 15(d) of the Exchange
\nAct, delivery within the time period specified above of copies of the quarterly
\nbalance sheets and statements on Form 10-Q of the Borrower and its Consolidated
\nSubsidiaries for such quarterly period as filed with the SEC shall be deemed to
\nsatisfy the requirements of this clause (i)<\/u>;<\/p>\n<\/p>\n (ii) As soon as available and in any event within the earlier of (A) five (5)
\ndays after the time period specified by the SEC under the Exchange Act for
\nannual reporting or (B) one hundred (100) days after the end of each fiscal year
\nof the Borrower, a Consolidated balance sheet of the Borrower and its
\nConsolidated Subsidiaries as of the end of such year and a Consolidated
\nstatement of income,<\/p>\n<\/p>\n 60<\/p>\n \n
\ncash flows and shareholder153s equity and comprehensive income of the Borrower
\nand its Consolidated Subsidiaries for such fiscal year and accompanied by (1) a
\nreport of PricewaterhouseCoopers LLP, or other independent public accountants of
\nnationally recognized standing, on the results of their examination of the
\nConsolidated annual financial statements of the Borrower and its Consolidated
\nSubsidiaries, which report shall be unqualified as to a “going concern” or like
\nqualification or exception or as to the scope of such audit or shall be
\notherwise reasonably acceptable to the Majority Banks, and (2) a certificate of
\nsuch accountants substantially in the form of Exhibit 8.01(f)(ii)<\/u>
\nhereto; provided<\/u> further<\/u>, that at any time the Borrower shall be
\nsubject to the reporting requirements of Section 13 or Section 15(d) of the
\nExchange Act, delivery within the time period specified above of copies of the
\nannual balance sheets and statements on Form 10-K of the Borrower and its
\nConsolidated Subsidiaries for such annual period as filed with the SEC shall be
\ndeemed to satisfy the requirements of this clause (ii)<\/u>;<\/p>\n<\/p>\n (iii) Promptly after the sending or filing thereof, copies of all reports
\nwhich the Borrower files with the SEC under the Exchange Act; provided<\/u>,
\nthat such quarterly and annual financial statements and reports filed with the
\nSEC required pursuant to clauses (i)<\/u>, (ii)<\/u> and (iii)<\/u> above
\nshall be deemed delivered to the Administrative Agent on the earlier of the date
\nsuch statements or reports are available at (i) www.sec.gov and (ii) the
\nBorrower153s website at www.baxter.com;<\/p>\n<\/p>\n (iv) Together with the financial statements required pursuant to clauses
\n(i)<\/u> and (ii)<\/u> above, a certificate signed by the chief financial
\nofficer of the Borrower (A) stating that no Event of Default or Unmatured Event
\nof Default exists or, if any does exist, stating the nature and status thereof
\nand describing the action the Borrower proposes to take with respect thereto,
\nand (B) demonstrating, in reasonable detail, the calculations used by such
\nofficer to determine compliance with the financial covenants contained in
\nSections 8.02(a)<\/u> and 8.02(b)<\/u>; and<\/p>\n<\/p>\n (v) As soon as possible, and in any event within five (5) Business Days after
\nthe Borrower shall become aware of the occurrence of each Event of Default or
\nUnmatured Event of Default, which Event of Default or event is continuing on the
\ndate of such statement, a statement of the chief financial officer of the
\nBorrower setting forth details of such Event of Default or event and the action
\nwhich the Borrower proposes to take with respect thereto.<\/p>\n<\/p>\n (g) Use of Proceeds<\/u>. Use the proceeds of Borrowings made under or
\nLetters of Credit issued in accordance with this Agreement for general corporate
\npurposes not in violation of any applicable law or regulation (including,
\nwithout limitation, Regulation U and X of the Board of Governors of the Federal
\nReserve System (the “Margin Regulations<\/u>“)). Without limiting the
\ngenerality of the foregoing, the Borrower may use the credit facilities provided
\nby this Agreement in support of its commercial paper program. With respect to
\nany Borrowing the proceeds of which shall be used to purchase or carry Margin
\nStock, the Borrower shall include in the Notice of Borrowing for such<\/p>\n<\/p>\n 61<\/p>\n \n
\nBorrowing such information as shall enable the Banks and the Borrower to
\ncomply with the Margin Regulations.<\/p>\n<\/p>\n SECTION 8.02. Negative Covenants of the Borrower<\/u>. So long as any
\nAdvance shall remain unpaid, any L\/C Obligations shall remain outstanding or any
\nBank shall have any Commitment, the Borrower will not:<\/p>\n<\/p>\n (a) Liens, Etc<\/u>. Suffer to exist, create, assume or incur, or permit
\nany of its Material Subsidiaries to suffer to exist, create, assume or incur,
\nany Security Interest, or assign, or permit any of its Material Subsidiaries to
\nassign, any right to receive income, in each case to secure Debt or any other
\nobligation or liability, other than:<\/p>\n<\/p>\n\n\n\n| <\/td>\n | \n (i)<\/p>\n<\/td>\n | <\/td>\n | \n Any Security Interest to secure Debt or any other obligation or liability of
\nany Material Subsidiary to the Borrower.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (ii)<\/p>\n<\/td>\n | <\/td>\n | \n Mechanics153, materialmen153s, carriers153 or other like liens arising in the
\nordinary course of business (including construction of facilities) in respect of
\nobligations which are not due or which are being contested in good faith and for
\nwhich reasonable reserves have been established.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (iii)<\/p>\n<\/td>\n | <\/td>\n | \n Any Security Interest arising by reason of deposits with, or the giving of
\nany form of security to, any governmental agency or any body created or approved
\nby law or governmental regulation which is required by law or governmental
\nregulation as a condition to the transaction of any business, or the exercise of
\nany privilege, franchise or license.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (iv)<\/p>\n<\/td>\n | <\/td>\n | \n Security Interests for taxes, assessments or governmental charges or levies
\nnot yet delinquent or Security Interests for taxes, assessments or governmental
\ncharges or levies already delinquent but the validity of which is being
\ncontested in good faith and for which reasonable reserves have been established.\n<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (v)<\/p>\n<\/td>\n | <\/td>\n | \n Security Interests (including judgment liens) arising in connection with
\nlegal proceedings so long as such proceedings are being contested in good faith
\nand, in the case of judgment liens, the related judgment does not constitute an
\nEvent of Default under Section 9.01(g)<\/u>.<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (vi)<\/p>\n<\/td>\n | <\/td>\n | \n Landlords153 liens on fixtures located on premises leased by the Borrower or
\none of its Material Subsidiaries in the ordinary course of business.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (vii)<\/p>\n<\/td>\n | <\/td>\n | \n Security Interests arising in connection with contracts and subcontracts with
\nor made at the request of the United States of America, any state thereof, or
\nany department, agency or<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 62<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | \n instrumentality of the United States or any state thereof for obligations not
\nyet delinquent.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n (viii)<\/p>\n<\/td>\n | <\/td>\n | \n Any Security Interest arising by reason of deposits to qualify the Borrower
\nor a Subsidiary to conduct business, to maintain self-insurance, or to obtain
\nthe benefit of, or comply with, laws.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (ix)<\/p>\n<\/td>\n | <\/td>\n | \n Any purchase money Security Interest claimed by sellers of goods on ordinary
\ntrade terms provided<\/u> that no financing statement has been filed to
\nperfect such Security Interest.<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n| <\/td>\n | \n (x)<\/p>\n<\/td>\n | <\/td>\n | \n The extension of any Security Interest existing as of the date hereof to
\nadditions, extensions, or improvements to the property subject to the Security
\nInterest which does not arise as a result of borrowing money or the securing of
\nDebt or other obligation or liability created, assumed or incurred after such
\ndate.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (xi)<\/p>\n<\/td>\n | <\/td>\n | \n Security Interests on (i) property of a corporation or firm existing at the
\ntime such corporation or firm is merged or consolidated with the Borrower or any
\nSubsidiary or at the time of a sale, lease or other disposition of the
\nproperties of a corporation or a firm as an entirety (or the properties of a
\ncorporation or firm comprising a product line or line of business, as an
\nentirety) or substantially as an entirety to the Borrower or a Subsidiary; or
\n(ii) property comprising machinery, equipment or real property acquired by the
\nBorrower or any of its Subsidiaries, which Security Interests shall have existed
\nat the time of such acquisition and secure obligations assumed by the Borrower
\nor such Subsidiary in connection with such acquisition; provided<\/u> that the
\nSecurity Interests of the type described in this clause (xi)<\/u> shall not
\nattach to or affect property owned by the Borrower or such Subsidiary prior to
\nthe event referred to in this clause (xi)<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n| <\/td>\n | \n (xii)<\/p>\n<\/td>\n | <\/td>\n | \n Security Interests arising in connection with the sale, assignment or other
\ntransfer by the Borrower or any Material Subsidiary of accounts receivable,
\nlease receivables or other payment obligations (together with rights and assets
\nrelated thereto, any of the foregoing being a “Receivable<\/u>“) owing to the
\nBorrower or any Subsidiary or any interest in any of the foregoing (together in
\neach case with any collections and other proceeds thereof and any collateral,
\nguaranties or other property or claims in favor of the Borrower or such
\nSubsidiary supporting or securing payment by the obligor thereon of any such
\nReceivables), in each case whether such sale, assignment or other transfer
\nconstitutes a “true sale” or a secured financing for accounting, tax or any
\nother purpose; provided<\/u> that either (i) such sale, assignment or other
\ntransfer shall have been made as part of a sale of the business out of which the\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 63<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | \n applicable Receivables arose, (ii) such sale, assignment or other transfer is
\nmade in the ordinary course of business and is for the purpose of collection
\nonly, (iii) such sale, assignment or other transfer is made in connection with
\nan agreement on the part of the assignee thereof to render performance under the
\ncontract that has given rise to such Receivable, or (iv) in all other cases, the
\naggregate outstanding principal amount of the investment or claim held by
\npurchasers, assignees or other transferees of (or of interests in) such
\nReceivables (as determined by the Borrower using any reasonable methods as of
\nthe time any such investment is made or claim is incurred) shall not exceed an
\namount equal to ten percent (10%) of the Consolidated total assets of the
\nBorrower and its Consolidated Subsidiaries at such time.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n (xiii)<\/p>\n<\/td>\n | <\/td>\n | \n Security Interests securing non-recourse obligations in connection with
\nleveraged or single-investor lease transactions.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (xiv)<\/p>\n<\/td>\n | <\/td>\n | \n Security Interests securing the performance of any contract or undertaking
\nmade in the ordinary course of business (as such business is currently
\nconducted) other than for the borrowing of money.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n (xv)<\/p>\n<\/td>\n | <\/td>\n | \n Any Security Interest granted by the Borrower or any Material Subsidiary of
\nthe Borrower; provided<\/u> that (i) the property which is subject to such
\nSecurity Interest is a parcel of real property, a manufacturing plant,
\nmanufacturing equipment, a warehouse, or an office building hereafter acquired,
\nconstructed, developed or improved by the Borrower or such Material Subsidiary,
\nand (ii) such Security Interest is created prior to or contemporaneously with,
\nor within 120 days after (x) in the case of acquisition of such property, the
\ncompletion of such acquisition and (y) in the case of the construction,
\ndevelopment or improvement of such property, the later to occur of the
\ncompletion of such construction, development or improvement or the commencement
\nof operations, use or commercial production (exclusive of test and start-up
\nperiods) of such property, and such Security Interest secures or provides for
\nthe payment of all or any part of the acquisition cost of such property or the
\ncost of construction, development or improvement thereof, as the case may be.\n<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | \n (xvi)<\/p>\n<\/td>\n | <\/td>\n | \n Any conditional sales agreement or other title retention agreement with
\nrespect to property acquired by the Borrower or any Material Subsidiary.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n (xvii)<\/p>\n<\/td>\n | <\/td>\n | \n Any Security Interest that secures an obligation owed to the United States of
\nAmerica or any state, territory or possession of the United States of America,
\nany political subdivision of any of the foregoing<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 64<\/p>\n \n
\n\n\n\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | \n or the District of Columbia (each, a “Governmental Entity<\/u>“) in
\nconnection with a bond or other obligation issued by a Governmental Entity to
\nfinance the construction or acquisition by the Borrower or any Material
\nSubsidiary of any manufacturing plant, warehouse, office building or parcel of
\nreal property (including fixtures).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n| <\/td>\n | \n (xviii)<\/p>\n<\/td>\n | <\/td>\n | \n Any Security Interest in deposits or cash equivalent investments pledged with
\na financial institution for the sole purpose of implementing a hedging or
\nfinancing arrangement commonly known as a “back-to-back” loan arrangement,
\nprovided<\/u> in each case that neither the assets subject to such Security
\nInterest nor the Debt incurred in connection therewith are reflected on the
\nConsolidated balance sheet of the Borrower.<\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | \n (xix)<\/p>\n<\/td>\n | <\/td>\n | \n Security Interests of financial institutions as collecting banks or with
\nrespect to deposit or securities accounts held at such financial institutions,
\nin each case in the ordinary course of business.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n| <\/td>\n | \n (xx)<\/p>\n<\/td>\n | <\/td>\n | \n Any extension, renewal or refunding (or successive extensions, renewals or
\nrefundings) in whole or in part of any Debt or any other obligation or liability
\nsecured by any Security Interest referred to in the foregoing clauses (i)<\/u>
\nthrough (xix)<\/u>, provided<\/u> that the principal amount of Debt or any
\nother obligation or liability secured by such Security Interest shall not exceed
\nthe principal amount outstanding immediately prior to such extension, renewal or
\nrefunding, and that the Security Interest securing such Debt or other obligation
\nor liability shall be limited to the property which, immediately prior to such
\nextension, renewal or refunding secured such Debt or other obligation or
\nliability and additions to such property.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Notwithstanding the foregoing provisions of this Section 8.02(a)<\/u>, the
\nBorrower and its Material Subsidiaries may, at any time, suffer to exist, issue,
\nincur, assume and guarantee Secured Debt (in addition to Secured Debt permitted
\nto be secured under the foregoing clauses (i)<\/u> through (xx)<\/u>),
\nprovided<\/u> that the aggregate amount of such Secured Debt, together with
\nthe aggregate amount of all other Secured Debt (not including Secured Debt
\npermitted to be secured under the foregoing clauses (i)<\/u> through
\n(xx)<\/u>) of the Borrower and its Material Subsidiaries which is suffered to
\nexist, issued, incurred, assumed or guaranteed after the date hereof, does not
\nat such time exceed ten percent (10%) of Consolidated Net Tangible Assets.<\/p>\n<\/p>\n (b) Limitation on Debt<\/u>. Permit Consolidated Adjusted Debt of the
\nBorrower and its Consolidated Subsidiaries at any time to exceed<\/u> an
\namount equal to fifty-five percent (55%) of Consolidated Capitalization at such
\ntime.<\/p>\n<\/p>\n 65<\/p>\n \n
\n(c) Merger, Etc.<\/u><\/p>\n<\/p>\n (i) Merge or consolidate with or into, or Transfer Assets to, any Person,
\nexcept that the Borrower may (A) merge or consolidate with any corporation,
\nincluding any Subsidiary, which is a U.S. Corporation and (B) Transfer Assets to
\nany Subsidiary which is a U.S. Corporation; provided<\/u>, in each case
\ndescribed in clause (A)<\/u> and (B)<\/u> above, that (x) immediately after
\ngiving effect to such transaction, no event shall have occurred and be
\ncontinuing which constitutes an Event of Default or Unmatured Event of Default
\nand (y) in the case of any merger or consolidation to which the Borrower shall
\nbe a party, the survivor of such merger or consolidation shall be the Borrower.\n<\/p>\n<\/p>\n (ii) Permit any Material Subsidiary to merge or consolidate with or into, or
\nTransfer Assets to, any Person unless, immediately after giving effect to such
\ntransaction, no event shall have occurred and be continuing which constitutes an
\nEvent of Default or Unmatured Event of Default.<\/p>\n<\/p>\n For purposes of this Section 8.02(c)<\/u>: “Transfer Assets<\/u>” means,
\nwhen referring to the Borrower, the conveyance, transfer, lease or other
\ndisposition (whether in one transaction or in a series of transactions) of all
\nor substantially all of the assets of the Borrower or of the Borrower and its
\nSubsidiaries considered as a whole and means, when referring to a Material
\nSubsidiary, the conveyance, transfer, lease or other disposition (whether in one
\ntransaction or in a series of transactions) of all or substantially all of the
\nassets of such Material Subsidiary; and “U.S. Corporation<\/u>” means a
\ncorporation organized and existing under the laws of the United States, any
\nstate thereof or the District of Columbia.<\/p>\n<\/p>\n ARTICLE IX<\/p>\n \n EVENTS OF DEFAULT<\/p>\n \n SECTION 9.01. Events of Default<\/u>. If any of the following events (each,
\nan “Event of Default<\/u>,” and, collectively, “Events of Default<\/u>“)
\nshall occur and be continuing:<\/p>\n<\/p>\n (a) The Borrower shall fail to (i) pay any installment of interest on any
\nAdvance or any facility fee payable under Section 5.04(a)<\/u>, or any letter
\nof credit fee payable under Section 4.07<\/u> or Section 5.04(c)<\/u>, in
\neach case when due and such default continues for five (5) days, or (ii) pay any
\namount of principal of any Advance or any Reimbursement Obligation when due; or\n<\/p>\n<\/p>\n (b) Any representation or warranty made or deemed made by the Borrower (or
\nany of its officers) in connection with this Agreement, any Advance or Letter of
\nCredit shall prove to have been incorrect in any material respect when made or
\ndeemed made; or<\/p>\n<\/p>\n (c) The Borrower shall fail to perform or observe any term, covenant or
\nagreement contained in Section 8.02(a)<\/u> or Section 8.02(b)<\/u> of this
\nAgreement on its part to be performed or observed and such failure shall remain
\nunremedied on the earlier to occur of (i) or (ii): (i) the date thirty (30) days
\nafter the Borrower shall have become<\/p>\n<\/p>\n 66<\/p>\n \n
\naware of such failure or (ii) the date that financial statements of the
\nBorrower shall be available from which it may be ascertained that such failure
\nto perform or observe such term, covenant or agreement shall have occurred. For
\npurposes of clause (ii)<\/u> above, the date that any financial statements
\nshall be deemed available shall be the date on which the Borrower shall file
\n(or, if earlier, the date the Borrower shall have been required to file) such
\nfinancial statements with the SEC as part of any report required to be filed
\npursuant to the Exchange Act; or<\/p>\n<\/p>\n (d) The Borrower shall (i) fail to perform or observe, or shall breach, any
\nother term, covenant or agreement contained in this Agreement on its part to be
\nperformed or observed (other than those failures or breaches referred to in
\nsubsections (a)<\/u>, (b)<\/u>, (c)<\/u>, (d)(ii)<\/u> or
\n(d)(iii)<\/u> of this Section 9.01<\/u>) and any such failure or breach
\nshall remain unremedied for thirty (30) days after written notice thereof has
\nbeen given to the Borrower by the Administrative Agent at the request of any
\nBank; (ii) fail to perform or observe Section 8.02(c)<\/u>; or (iii) fail to
\nperform or observe Section 8.01(f)(v)<\/u> and such failure shall remain
\nunremedied for fifteen (15) days after the occurrence thereof; or<\/p>\n<\/p>\n (e) The Borrower or any Material Subsidiary shall fail to pay any amount of
\nprincipal of, interest on or premium with respect to, any Debt (other than that
\nevidenced by this Agreement) of the Borrower or such Subsidiary when due
\n(whether at scheduled maturity or by required prepayment, acceleration, demand
\nor otherwise) which Debt is outstanding under one or more instruments or
\nagreements in an aggregate principal amount not less than $150,000,000 and such
\nfailure shall continue after the applicable grace period, if any, specified in
\nthe agreement or instrument relating to such Debt; or any other event shall
\noccur or condition shall exist after the applicable grace period specified in
\nsuch agreement or instrument, if the effect of such event or condition is to
\naccelerate the maturity of such Debt; or any such Debt shall be declared to be
\ndue and payable, or required to be prepaid (other than by a scheduled
\nprepayment), prior to the stated maturity thereof; or<\/p>\n<\/p>\n (f) The Borrower or any Material Subsidiary shall generally not pay its debts
\nas such debts become due, or shall admit in writing its inability to pay its
\ndebts generally, or shall make a general assignment for the benefit of
\ncreditors; or any proceeding shall be instituted by or against the Borrower or
\nsuch Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
\nseeking liquidation, winding up, reorganization, arrangement, adjustment,
\nprotection, relief, or composition of it or its debt under any law relating to
\nbankruptcy, insolvency or reorganization or relief of debtors, or seeking the
\nentry of an order for relief or the appointment of a receiver, trustee, or other
\nsimilar official for it or for any substantial part of its property; or the
\nBorrower or any such Material Subsidiary shall take corporate action to
\nauthorize any of the actions set forth above in this subsection (f)<\/u>;
\nprovided<\/u> that, in the case of any such proceeding filed or commenced
\nagainst the Borrower or any Material Subsidiary, such event shall not constitute
\nan “Event of Default” hereunder unless either (i) the same shall have remained
\nundismissed or unstayed for a period of sixty (60) days, (ii) an order for
\nrelief shall have been entered against the Borrower or such Material Subsidiary
\nunder the federal bankruptcy laws as now or hereafter in effect or (iii) the
\nBorrower or such Material Subsidiary shall have<\/p>\n<\/p>\n 67<\/p>\n \n
\ntaken corporate action consenting to, approving or acquiescing in the
\ncommencement or maintenance of such proceeding; or<\/p>\n<\/p>\n (g) Any judgment or order for the payment of money shall be rendered against
\nthe Borrower or any Material Subsidiary and (i) either (A) enforcement
\nproceedings shall have been commenced by any creditor upon such judgment or
\norder or (B) there shall be any period of thirty (30) consecutive days, in the
\ncase of a judgment or order rendered or entered by a court during which a stay
\nof enforcement of such judgment or order, by reason of a pending appeal or
\notherwise, shall not be in effect, and (ii) the amount of such judgment or
\norder, when aggregated with the amount of all other such judgments and orders
\ndescribed in this subsection (g)<\/u>, shall exceed $150,000,000;
\nprovided<\/u> that the rendering of any such judgment or order shall not
\nconstitute an Unmatured Event of Default; or<\/p>\n<\/p>\n (h) Either (i) the PBGC shall institute proceedings under Section 4042 of
\nERISA to terminate any Plan and such Plan shall have an Unfunded Liability in an
\namount in excess of $150,000,000 at such time or (ii) withdrawal liability shall
\nbe assessed against the Borrower or any Material Subsidiary in connection with
\nany Multiemployer Plan (whether under Section 4203 or Section 4205 of ERISA) and
\nsuch withdrawal liability shall be an amount in excess of $150,000,000; or<\/p>\n<\/p>\n (i) A Change of Control shall occur;<\/p>\n<\/p>\n then, in any such event but subject to the next sentence, the Administrative
\nAgent shall at the request, or may with the consent, of the Majority Banks, by
\nnotice to the Borrower, (i) declare the obligation of each Bank to make Advances
\nand the obligation of each Issuing Bank to issue Letters of Credit hereunder to
\nbe terminated, whereupon the same shall forthwith terminate, (ii) declare the
\nentire unpaid principal amount of the Advances, all interest accrued and unpaid
\nthereon and all other amounts payable under this Agreement (including
\nReimbursement Obligations) to be forthwith due and payable, whereupon the
\nAdvances, all such accrued interest and all such amounts shall become and be
\nforthwith due and payable, without presentment, demand, protest or further
\nnotice of any kind, all of which are hereby expressly waived by the Borrower;
\nprovided<\/u> that in the case of any Competitive Bid Advance, the unpaid
\nprincipal amount thereof, and all interest accrued and unpaid thereon, shall not
\nbe declared to be due and payable pursuant to the foregoing clause (ii)<\/u>
\nwithout the consent of the Bank to which such Competitive Bid Advance is owing
\nand (iii) demand delivery of, and promptly following such demand the Borrower
\nshall deliver and pledge to the Administrative Agent (or another Bank selected
\nby the Borrower) for the benefit of the Banks, cash or other collateral of a
\ntype satisfactory to the Majority Banks and having a value, as determined by the
\nAdministrative Agent, equal to the aggregate undrawn face amount of the Letters
\nof Credit then outstanding and all fees and other amounts then due. In the event
\nof the occurrence of an Event of Default under Section 9.01(f)<\/u>, (A) the
\nobligation of each Bank to make Advances and the obligation of each Issuing Bank
\nto issue Letters of Credit hereunder shall automatically be terminated and (B)
\nthe Advances, all such interest and all such amounts (including Reimbursement
\nObligations) shall automatically become and be due and payable, without
\npresentment, demand, protest or any notice of any kind, all of which are hereby
\nexpressly waived by the Borrower.<\/p>\n<\/p>\n 68<\/p>\n \n
\nSECTION 9.02. Cash Collateral<\/u>. Any cash collateral delivered pursuant
\nto Section 9.01<\/u> in respect of the outstanding Letters of Credit shall be
\nheld by the Administrative Agent or the applicable Bank in a separate
\ninterest-bearing account appropriately designated as a cash collateral account
\nin relation to this Agreement and the Letters of Credit and retained by and
\nunder the control of the Administrative Agent or the applicable Bank for the
\nbenefit of all of the Banks and the Issuing Banks as collateral security for the
\nBorrower153s obligations in respect of this Agreement and each of the Letters of
\nCredit. Amounts held in such account shall be applied on the direction of the
\nAdministrative Agent to reimburse the Issuing Banks for drawings or payments
\nunder or pursuant to Letters of Credit, or if no such reimbursement is required,
\nto payment of such of the other obligations due and owing hereunder as the
\nAdministrative Agent shall determine. If no Event of Default shall be
\ncontinuing, amounts remaining in any cash collateral account established
\npursuant to this Section 9.02<\/u> which are not to be applied to reimburse an
\nIssuing Bank for amounts actually paid or to be paid by such Issuing Bank in
\nrespect of a Letter of Credit or to payment of such of the other obligations due
\nand owing hereunder, shall be promptly returned to the Borrower upon the
\nBorrower153s request therefor.<\/p>\n<\/p>\n ARTICLE X<\/p>\n \n THE ADMINISTRATIVE AGENT<\/p>\n \n SECTION 10.01. Authorization and Action<\/u>. Each Bank hereby appoints and
\nauthorizes the Administrative Agent to take such action as agent on its behalf
\nand to exercise such powers under this Agreement as are delegated to the
\nAdministrative Agent by the terms hereof, together with such powers as are
\nreasonably incidental thereto. As to any matters not expressly provided for by
\nthis Agreement, the Administrative Agent shall not be required to exercise any
\ndiscretion or take any action, but shall be required to act or to refrain from
\nacting (and shall be fully protected in so acting or refraining from acting)
\nupon the instructions of the Majority Banks and such instructions shall be
\nbinding upon all Banks and all holders of Notes. The Administrative Agent shall
\nnot be required to take any action which exposes it to personal liability or
\nwhich is contrary to this Agreement or applicable law. The Administrative Agent
\nshall be permitted from time to time to designate one of its Affiliates to
\nperform the duties to be performed by the Administrative Agent hereunder with
\nrespect to Advances and Borrowings denominated in Agreed Currencies other than
\nDollars. The provisions of this Article X<\/u> shall apply to any such
\nAffiliate mutatis mutandis.<\/p>\n<\/p>\n SECTION 10.02. Duties and Obligations<\/u>. Neither the Administrative
\nAgent nor any of its directors, officers, agents or employees shall be liable
\nfor any action taken or omitted to be taken by it or them under or in connection
\nwith this Agreement except for its or their own gross negligence or willful
\nmisconduct. Without limiting the generality of the foregoing, (i) the
\nAdministrative Agent may treat the payee of any Note as the holder thereof
\nunless and until the Administrative Agent receives written notice of the
\nassignment thereof signed by such payee and the Administrative Agent receives
\nthe written agreement of the assignee that such assignee is bound hereby as it
\nwould have been if it had been an original Bank party hereto, in each case in
\nform satisfactory to the Administrative Agent, (ii) the Administrative Agent may
\nconsult with legal counsel (including counsel for the Borrower), independent
\npublic accountants and other experts selected by it and shall not be liable for
\nany action taken or omitted to be taken in good faith by it in accordance with
\nthe advice of such<\/p>\n<\/p>\n 69<\/p>\n \n
\ncounsel, accountants or experts, and (iii) the Administrative Agent shall
\nincur no liability under or in respect of this Agreement by acting upon any
\nnotice, consent, certificate or other instrument or writing (which may be by
\ntelegram, cable or telex) believed by it to be genuine and signed or sent by the
\nproper party or parties or by acting upon any representation or warranty of the
\nBorrower made or deemed to be made hereunder. Further, the Administrative Agent
\n(A) makes no warranty or representation to any Bank and shall not be responsible
\nto any Bank for the accuracy or completeness of any statements, warranties or
\nrepresentations (whether written or oral) made in or in connection with this
\nAgreement, (B) shall not have any duty to ascertain or to inquire as to the
\nperformance or observance of any of the terms, covenants or conditions of this
\nAgreement on the part of the Borrower or to inspect the property (including the
\nbooks and records) of the Borrower, and (C) shall not be responsible to any Bank
\nfor the due execution, legality, validity, enforceability, genuineness,
\nsufficiency or value of this Agreement or any other instrument or document
\nfurnished pursuant hereto.<\/p>\n<\/p>\n SECTION 10.03. Administrative Agent and Affiliates<\/u>. With respect to
\nits Commitment, the Advances made by it and the Notes issued to it, the
\nAdministrative Agent, in its separate capacity as a Bank, shall have the same
\nrights and powers under this Agreement as any other Bank and may exercise the
\nsame as though it were not the Administrative Agent; and the term “Bank” or
\n“Banks” shall, unless otherwise expressly indicated, include the Administrative
\nAgent in its separate capacity as a Bank. The Administrative Agent, in its
\nseparate capacity as a Bank, and its Affiliates may accept deposits from, lend
\nmoney to, act as trustee under indentures of, participate in Letters of Credit
\nissued to and generally engage in any kind of business with, the Borrower, any
\nSubsidiary and any Person which may do business with or own securities of the
\nBorrower or any Subsidiary, all as if it were not the Administrative Agent
\nhereunder and without any duty to account therefor to the Banks.<\/p>\n<\/p>\n SECTION 10.04. Bank Credit Decision<\/u>. Each Bank agrees that it has
\nitself been, and will continue to be, solely responsible for making its own
\nindependent appraisal of and investigations into the financial condition,
\ncreditworthiness, condition, affairs, status and nature of the Borrower.
\nAccordingly, each Bank confirms to the Administrative Agent that such Bank has
\nnot relied, and will not hereafter rely, on the Administrative Agent, or any
\nother Bank, (i) to check or inquire on its behalf into the adequacy, accuracy or
\ncompleteness of any information provided by the Borrower under or in connection
\nwith this Agreement or the transactions herein contemplated (whether or not such
\ninformation has been or is hereafter distributed to such Bank by the
\nAdministrative Agent), (ii) to assess or keep under review on its behalf the
\nfinancial condition, creditworthiness, condition, affairs, status or nature of
\nthe Borrower or (iii) in entering into this Agreement or in making its own
\ncredit decisions with respect to the taking or not taking of any action under
\nthis Agreement.<\/p>\n<\/p>\n SECTION 10.05. Indemnification<\/u>. The Banks agree to indemnify the
\nAdministrative Agent (to the extent not reimbursed by the Borrower) ratably
\naccording to the respective principal amounts of the Commitments then held by
\neach of them (or if the Commitments have at the time been terminated, ratably
\naccording to the respective Dollar Amounts of their Advances then outstanding),
\nfrom and against any and all liabilities, obligations, losses, damages,
\npenalties, actions, judgments, suits, costs, expenses or disbursements of any
\nkind or nature whatsoever which may be imposed on, incurred by, or asserted
\nagainst the Administrative Agent in any way relating to or arising out of this
\nAgreement<\/p>\n<\/p>\n 70<\/p>\n \n
\nor any action taken or omitted by the Administrative Agent under this
\nAgreement, provided<\/u> that no Bank shall be liable for any portion of such
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements resulting from the Administrative Agent153s gross
\nnegligence or willful misconduct. Without limiting the generality of the
\nforegoing, each Bank agrees to reimburse the Administrative Agent promptly upon
\ndemand for its ratable share of any out-of-pocket expenses (including reasonable
\ncounsel fees) incurred by the Administrative Agent in connection with the
\npreparation, execution, delivery, administration, modification or amendment of
\nthis Agreement or preservation of any rights of the Administrative Agent or the
\nBanks under, or the enforcement (whether through negotiations, legal proceedings
\nor otherwise) of, or legal advice in respect of rights or responsibilities
\nunder, this Agreement, to the extent that the Administrative Agent is not
\nreimbursed for such expenses by the Borrower.<\/p>\n<\/p>\n SECTION 10.06. Successor Administrative Agent<\/u>. The Administrative
\nAgent may resign at any time by giving written notice thereof to the Banks and
\nthe Borrower. Upon any such resignation or removal of the Administrative Agent,
\nthe Majority Banks shall have the right to appoint a successor Administrative
\nAgent to assume the position as Administrative Agent of the retiring
\nAdministrative Agent. If no successor Administrative Agent shall have been so
\nappointed by the Majority Banks, and shall have accepted such appointment,
\nwithin thirty (30) days after the retiring Administrative Agent153s giving of
\nnotice of resignation or the Majority Banks153 removal of the retiring
\nAdministrative Agent, then the retiring Administrative Agent may, on behalf of
\nthe Banks, appoint a successor Administrative Agent, which shall be either a
\nBank hereunder or a commercial bank organized or licensed under the laws of the
\nUnited States or of any state thereof and having a combined capital and surplus
\nof at least $500,000,000. The Borrower shall have the right to approve any
\nsuccessor Administrative Agent, which approval shall not be unreasonably
\nwithheld (in all such cases the Borrower shall be entitled to take into account
\nits past and then existing commercial banking relationships, among other
\nthings); provided<\/u> that if an Event of Default shall have occurred, such
\nright of the Borrower to approve the successor Administrative Agent shall be
\nsuspended during the continuance of such Event of Default. Upon the acceptance
\nof any appointment as Administrative Agent hereunder by a successor
\nAdministrative Agent, such successor Administrative Agent shall thereupon
\nsucceed to and become vested with all the rights, powers, privileges and duties
\nof the retiring Administrative Agent, and the retiring Administrative Agent
\nshall be discharged from its duties and obligations under this Agreement. After
\nany retiring Administrative Agent153s resignation or removal hereunder as
\nAdministrative Agent, the provisions of this Article X<\/u> shall inure to its
\nbenefit as to any actions taken or omitted to be taken by it while it was
\nAdministrative Agent under this Agreement.<\/p>\n<\/p>\n SECTION 10.07. Syndication Agents and Co-Lead Arrangers<\/u>. None of the
\nBanks identified on the cover page or signature pages of this Agreement as the
\n“Syndication Agents” or “Co-Lead Arrangers” shall have any right, power,
\nobligation, liability, responsibility or duty under this Agreement other than
\nthose applicable to all Banks as such. Each Bank acknowledges that it has not
\nrelied, and will not rely, on any of the Banks identified as Syndication Agents
\nor Co-Lead Arrangers in deciding to enter into this Agreement or in taking or
\nrefraining from taking any action hereunder or pursuant hereto.<\/p>\n<\/p>\n 71<\/p>\n \n
\nARTICLE XI<\/p>\n \n MISCELLANEOUS<\/p>\n \n SECTION 11.01. Amendments, Etc<\/u>. Subject to the further terms of this
\nSection 11.01<\/u>, no amendment or waiver of any provision of this Agreement,
\nnor consent to any departure by the Borrower therefrom, shall in any event be
\neffective unless the same shall be in writing and signed by the Majority Banks,
\nand then such waiver or consent shall be effective only in the specific instance
\nand for the specific purpose for which given. No amendment, waiver or consent
\nshall, unless in writing and signed by all the Banks, do any of the following:
\n(a) waive any of the conditions specified in Section 6.01<\/u>, (b) change the
\npercentage of the Commitments or of the aggregate unpaid principal amount of the
\nAdvances and L\/C Obligations, or the number of Banks, which shall be required
\nfor the Banks or any of them to take any action hereunder, or amend the
\ndefinition herein of “Majority Banks,” or (c) amend this Section 11.01<\/u>.
\nNo amendment, waiver or consent shall: (i) change the Commitments of any Bank or
\nsubject any Bank to any additional obligations without the written consent of
\nsuch Bank, (ii) reduce the principal of, or interest on, the Advances or the
\nReimbursement Obligations or any facility fees, letter of credit fees or other
\namount payable hereunder without the written consent of each Bank directly
\naffected thereby, provided<\/u>, however<\/u>, that only the consent of the
\nMajority Banks shall be necessary to amend Section 5.09<\/u> or to waive any
\nobligation of the Borrower to pay interest at the rate specified in such
\nSection 5.09<\/u> or (iii) change any date fixed for any payment in respect of
\nprincipal of, or interest on, the Advances or the Reimbursement Obligations or
\nany facility fees, letter of credit fees or other amount payable hereunder
\nwithout the written consent of each Bank directly affected thereby. No
\namendment, waiver or consent shall, unless in writing and signed by the
\nAdministrative Agent in addition to the Banks required hereinabove to take such
\naction, affect the rights or duties of the Administrative Agent under this
\nAgreement. No amendment, waiver or consent shall, without the consent of each
\nIssuing Bank affected thereby, amend, modify or waive any provision of
\nArticle IV<\/u> or alter any rights or obligations with respect to any Letter
\nof Credit issued by such Issuing Bank. Notwithstanding the foregoing, the
\nactions contemplated by Section 2.05<\/u> shall not be subject to the consent
\nof the Banks, except as otherwise expressly provided in such Section
\n2.05<\/u>.<\/p>\n<\/p>\n SECTION 11.02. Notices, Etc<\/u>. All notices and other communications
\nprovided for hereunder shall, unless otherwise stated herein, be in writing
\n(including by telex, telegram or telecopier) and mailed or sent or delivered, if
\nto the Borrower, at the address set forth for the Borrower on the signature
\npages hereof; if from the Borrower to the Administrative Agent or any Bank, to
\nthe Administrative Agent at the address set forth for the Administrative Agent
\non the signature pages hereof; if from the Administrative Agent to any Bank, at
\nthe address of such Bank153s Domestic Lending Office or, in the case of a notice
\nor communication relating to information delivered under Section
\n8.01(f)<\/u>, by posting on an Internet website established by the Administrative
\nAgent with Intralinks, Inc. or other similarly available electronic media; or,
\nin any case, at such other address as shall be designated by such party in a
\nwritten notice to the other parties hereto (except in the case of the Borrower,
\nas to which a change of address may be made by notice to the Administrative
\nAgent on behalf of the Banks and except in the case of any Bank, as to which a
\nchange of address may be made by notice to the Administrative Agent). Subject to
\nthe next sentence, all such notices and communications shall be effective, in
\nthe case of written notice, when deposited in the mails, air mail, postage<\/p>\n<\/p>\n 72<\/p>\n \n
\nprepaid, and, in the case of notice by telex, telecopy, telegram or cable,
\nwhen sent addressed as set forth above. All notices and communications pursuant
\nto Articles II<\/u>, III<\/u>, IX<\/u> and X<\/u> shall not be effective
\nuntil they are received by the addressee. The Administrative Agent agrees to
\ndeliver promptly to each Bank copies of each report, document, certificate,
\nnotice and request, or summaries thereof, which the Borrower is required to, and
\ndoes in fact, deliver to the Administrative Agent in accordance with the terms
\nof this Agreement, including, without limitation, copies of any reports to be
\ndelivered by the Borrower pursuant to Section 8.01(f)<\/u>.<\/p>\n<\/p>\n SECTION 11.03. No Waiver; Cumulative Remedies<\/u>. No failure on the part
\nof the Administrative Agent or any Bank to exercise, and no delay in exercising,
\nany right hereunder or under any Note shall operate as a waiver hereof, nor
\nshall any single or partial exercise of any such right preclude any other or
\nfurther exercise thereof or the exercise of any other right. The remedies herein
\nprovided are cumulative and not exclusive of any remedies provided by law.<\/p>\n<\/p>\n SECTION 11.04. Costs and Expenses; Indemnification<\/u>.<\/p>\n<\/p>\n (a) The Borrower agrees to reimburse on demand the Administrative Agent, the
\nSyndication Agents and the Co-Lead Arrangers for all reasonable and documented
\nout-of-pocket costs and expenses (including, subject to such limits as may be
\nagreed to in writing by the applicable parties from time to time, the reasonable
\nand documented fees, time charges and expenses of attorneys for the
\nAdministrative Agent, the Syndication Agents and the Co-Lead Arrangers, which
\nattorneys may be employees of the Administrative Agent, the Syndication Agents
\nand the Co-Lead Arrangers) incurred by the Administrative Agent, the Syndication
\nAgents and the Co-Lead Arrangers in connection with the preparation,
\nnegotiation, distribution through e-mail or secured website, execution,
\nsyndication and enforcement of this Agreement, the Notes, if any, and the other
\ndocuments to be delivered hereunder or contemplated hereby; provided<\/u>,
\nhowever<\/u>, that such out-of-pocket costs and expenses of the Administrative
\nAgent, the Syndication Agents and the Co-Lead Arrangers through the date of
\nexecution of this Agreement shall only be payable as set forth in a separate fee
\nletter (if any) executed and delivered prior to the effective date of this
\nAgreement by the Administrative Agent, the Syndication Agents, the Co-Lead
\nArrangers and the Borrower. The Borrower further agrees to pay on demand all
\ndirect out-of-pocket losses, and reasonable out-of-pocket costs and expenses, if
\nany (including reasonable fees and out-of-pocket expenses of outside counsel),
\nof the Administrative Agent, any Issuing Bank and any Bank in connection with
\nthe enforcement (whether by legal proceedings, negotiation or otherwise) of this
\nAgreement, the Notes, if any, and the other documents delivered hereunder.<\/p>\n<\/p>\n (b) If, due to payments made by the Borrower due to acceleration of the
\nmaturity of the Advances pursuant to Section 9.01<\/u> or due to any other
\nreason, any Bank receives payments of principal of any Fixed Rate Advance, or
\nany Fixed Rate Advance is Converted to a non-Fixed Rate Advance, in each case
\nother than on the last day of the Interest Period for such Advance, the Borrower
\nshall, upon demand by such Bank (with a copy of such demand to the
\nAdministrative Agent), pay to the Administrative Agent for the account of such
\nBank any amounts required to compensate such Bank for any<\/p>\n<\/p>\n 73<\/p>\n \n
\nadditional direct out-of-pocket losses, costs or expenses which it may
\nreasonably incur as a result of such payment or Conversion, including, without
\nlimitation, any such loss (excluding loss of anticipated profits), cost or
\nexpense incurred by reason of the liquidation or reemployment of deposits or
\nother funds acquired by any Bank to fund or maintain such Advance.<\/p>\n<\/p>\n (c) Subject to the next sentence, the Borrower agrees to indemnify and hold
\nharmless the Administrative Agent, each Issuing Bank and each Bank and each of
\ntheir respective directors, officers and employees from and against any and all
\nclaims, damages, liabilities and out-of-pocket expenses (including, without
\nlimitation, reasonable fees and out-of-pocket expenses of outside counsel) which
\nmay be incurred by or asserted against the Administrative Agent, such Issuing
\nBank or such Bank or any such director, officer or employee in connection with
\nor arising out of any investigation, litigation, or proceeding (i) related to
\nany transaction or proposed transaction (whether or not consummated) in which
\nany proceeds of any Borrowing are applied or proposed to be applied, directly or
\nindirectly, by the Borrower, whether or not the Administrative Agent, such
\nIssuing Bank or such Bank or any such director, officer or employee is a party
\nto such transactions or (ii) related to the Borrower153s entering into this
\nAgreement, or to any actions or omissions of the Borrower, any of its
\nSubsidiaries or Affiliates or any of its or their respective officers, directors
\nor employees in connection therewith, and in each case regardless of whether the
\nindemnified Person is party thereto. The Borrower shall not be required to
\nindemnify any such indemnified Person from or against any portion of such
\nclaims, damages, liabilities or expenses (a) arising out of the gross negligence
\nor willful misconduct of such indemnified Person as determined in a final
\njudgment by a court of competent jurisdiction or (b) that result from the
\nviolation by the Administrative Agent, such Issuing Bank or such Bank of any law
\nor judicial order.<\/p>\n<\/p>\n SECTION 11.05. Right of Set-Off<\/u>. Upon (i) the occurrence and during
\nthe continuance of any Event of Default and (ii) the making of the request or
\nthe granting of the consent specified by Section 9.01<\/u> to authorize the
\nAdministrative Agent to declare the Advances due and payable pursuant to the
\nprovisions of Section 9.01<\/u>, each Bank (and each of its Affiliates) is
\nhereby authorized at any time and from time to time, to the fullest extent
\npermitted by law, to set off and apply any and all deposits (general or special,
\ntime or demand, provisional or final) at any time held and other indebtedness at
\nany time owing by such Bank (or any of its Affiliates) to or for the credit or
\nthe account of the Borrower against any and all of the obligations of the
\nBorrower now or hereafter existing under this Agreement and any Notes held by
\nsuch Bank, irrespective of whether or not such Bank shall have made any demand
\nunder this Agreement and any Notes and of whether or not such obligations may be
\nmatured. Each Bank agrees promptly to notify the Borrower after any such set-off
\nand application made by such Bank, but the failure to give such notice shall not
\naffect the validity of such set-off and application. The rights of each Bank
\nunder this Section 11.05<\/u> are in addition to other rights and remedies
\n(including, without limitation, other rights of set-off) which such Bank may
\nhave.<\/p>\n<\/p>\n SECTION 11.06. Binding Effect; Assignment<\/u>.<\/p>\n<\/p>\n (a) This Agreement shall become effective when it shall have been executed by
\nthe Borrower and the Administrative Agent and when the Administrative Agent
\nshall<\/p>\n<\/p>\n 74<\/p>\n \n
\nhave been notified by each Bank that such Bank has executed it and thereafter
\nshall be binding upon and inure to the benefit of the Borrower, the
\nAdministrative Agent and each Bank and their respective successors and assigns,
\nexcept that the Borrower shall not have the right to assign its rights hereunder
\nor any interest herein without the prior written consent of all of the Banks.\n<\/p>\n<\/p>\n (b) Any Bank may assign, participate or otherwise transfer all or any part
\nof, or interest in, such Bank153s rights and obligations hereunder and under the
\nNotes issued to it hereunder to one or more banks or other entities;
\nprovided<\/u> that (i) in the case of any assignment, participation or other
\ntransfer to a Person that is not a Bank, an Affiliate of a Bank or an Approved
\nFund, the Borrower (except during the continuance of an Event of Default), the
\nIssuing Banks and the Administrative Agent, in each case whose consent shall not
\nbe unreasonably withheld or delayed, shall have expressly agreed in writing;
\nprovided<\/u> that a material increase in counterparty risk shall be
\nreasonable grounds (although not exclusive grounds) for the withholding of such
\nconsent; and (ii) in the case of any assignment in part, the amount of the
\nCommitment being assigned pursuant to such assignment shall in no event be less
\nthan $5,000,000 (or a lesser amount approved by the Administrative Agent). Upon
\nthe effectiveness of any such assignment (but not in the event of any such
\nparticipation or other transfer) such assignee shall be a Bank hereunder and
\nshall have all the rights and benefits thereof. However, unless and until the
\nconditions for the Administrative Agent153s treating such assignee as holder
\npursuant to clause (c)<\/u> below shall have been satisfied, such assignee
\nshall not be entitled to exercise the rights of a Bank under this Agreement and
\nthe Administrative Agent shall not be obligated to make payment of any amount to
\nwhich such assignee may become entitled hereunder other than to the Bank which
\nassigned its rights to such assignee. Nothing contained herein shall impair the
\nability of any Bank, in its discretion, to agree, solely as between itself and
\nits assignees, participants and other transferees, upon the manner in which such
\nBank shall exercise its rights under this Agreement and the Notes made to such
\nBank. The assignee, if it shall not already be a Bank, shall deliver to the
\nAdministrative Agent an Administrative Questionnaire in which the assignee
\ndesignates one or more credit contacts to whom all syndicate-level information
\n(which may contain material non-public information about the Borrower and its
\naffiliates and their related parties or their respective securities) will be
\nmade available and who may receive such information in accordance with the
\nassignee153s compliance procedures and applicable laws, including Federal and
\nstate securities laws.<\/p>\n<\/p>\n (c) In order to effect any assignment permitted hereunder by a Bank of all or
\nany portion of its Commitment hereunder, the parties to each such assignment
\nshall execute and deliver to the Administrative Agent, for its acceptance and
\nrecording in the Register (as defined below), an agreement substantially in the
\nform of Exhibit 11.06<\/u> hereto (an “Assignment and Acceptance<\/u>“),
\ntogether with any Note or Notes subject to such assignment and a processing and
\nrecordation fee of $3,500 payable by the assignor or assignee. Upon such
\nexecution, delivery, acceptance and recording and delivery to the Administrative
\nAgent of such assignee153s Administrative Questionnaire, from and after the
\neffective date specified in each Assignment and Acceptance, (x) the assignee
\nthereunder shall be a party hereto and, to the extent that rights and
\nobligations hereunder have been assigned to it pursuant to such Assignment and
\nAcceptance, have the rights<\/p>\n<\/p>\n 75<\/p>\n \n
\nand obligations of a Bank hereunder and (y) the Bank assignor thereunder
\nshall, to the extent that rights and obligations hereunder have been assigned by
\nit pursuant to such Assignment and Acceptance, relinquish its rights and be
\nreleased from its obligations under this Agreement (and, in the case of an
\nAssignment and Acceptance covering all or the remaining portion of an assigning
\nBank153s rights and obligations under this Agreement, such Bank shall cease to be
\na party hereto but shall continue to be entitled to the benefits of Sections
\n5.13<\/u>, 5.15<\/u> and 11.04<\/u> for any events or circumstances occurring
\nor existing before the effective date of assignment).<\/p>\n<\/p>\n (d) By executing and delivering an Assignment and Acceptance, the Bank
\nassignor thereunder and the assignee thereunder confirm to and agree with each
\nother and the other parties hereto as follows: (i) other than as provided in
\nsuch Assignment and Acceptance, such assigning Bank makes no representation or
\nwarranty and assumes no responsibility with respect to any statements,
\nwarranties or representations made in or in connection with this Agreement or
\nthe execution, legality, validity, enforceability, genuineness, sufficiency or
\nvalue of this Agreement or any other instrument or document furnished pursuant
\nhereto; (ii) such assigning Bank makes no representation or warranty and assumes
\nno responsibility with respect to the financial condition of the Borrower or the
\nperformance or observance by the Borrower of any of its obligations under this
\nAgreement or any other instrument or document furnished pursuant hereto; (iii)
\nsuch assignee confirms that it has received a copy of this Agreement, together
\nwith copies of the financial statements referred to in Section 7.01(f)<\/u>
\n(and any later statements delivered pursuant to Section 8.01(f)(ii)<\/u>) and
\nsuch other documents and information as it has deemed appropriate to make its
\nown credit analysis and decision to enter into such Assignment and Acceptance;
\n(iv) such assignee will, independently and without reliance upon the
\nAdministrative Agent, such assigning Bank or any other Bank and based on such
\ndocuments and information as it shall deem appropriate at the time, continue to
\nmake its own credit decisions in taking or not taking action under this
\nAgreement; (v) such assignee appoints and authorizes the Administrative Agent to
\ntake such action as agent on its behalf and to exercise such powers under this
\nAgreement as are delegated to the Administrative Agent by the terms hereof,
\ntogether with such powers as are reasonably incidental thereto; and (vi) such
\nassignee agrees that it will perform in accordance with their terms all of the
\nobligations which by the terms of this Agreement are required to be performed by
\nit as a Bank.<\/p>\n<\/p>\n (e) The Administrative Agent shall maintain at its address referred to in
\nSection 11.02<\/u> a copy of each Assignment and Acceptance delivered to and
\naccepted by it and a register for the recordation of the names and addresses of
\nthe Banks and the Commitment of, and principal amount (and stated interest on)
\nof the Advances owing to, each Bank from time to time (the “Register<\/u>“).
\nThe entries in the Register shall be conclusive and binding for all purposes,
\nabsent manifest error, and the Borrower, the Administrative Agent and the Banks
\nshall treat each Person whose name is recorded in the Register as a Bank
\nhereunder for all purposes of this Agreement. The Register shall be available
\nfor inspection by the Borrower or any Bank at any reasonable time and from time
\nto time upon reasonable prior notice.<\/p>\n<\/p>\n 76<\/p>\n \n
\n(f) Notwithstanding anything contained herein to the contrary, each Bank may
\npledge its right, title and interest under this Agreement and any Note made to
\nit to the Board of Governors of the Federal Reserve System, or any other
\nGovernmental Authority, as security for financial accommodations or privileges
\nbeing provided or extended to such Bank by such Governmental Authority.<\/p>\n<\/p>\n SECTION 11.07. Confidentiality<\/u>. The Administrative Agent, each Bank
\nand each Issuing Bank agree to hold any confidential information which it may
\nreceive from the Borrower pursuant to this Agreement in confidence, except for
\ndisclosure (i) to its Affiliates, legal counsel, accountants, and other
\nprofessional advisors, and then solely on a need-to-know basis, (ii) in response
\nto any request or order therefor issued by any Governmental Authority, (iii) as
\nrequired by law, regulation, or judicial process, (iv) within any legal
\nproceeding to enforce any of its rights or remedies hereunder; provided<\/u>
\nthat an Event of Default shall have occurred hereunder and the requisite Banks
\nshall have elected under Section 9.01<\/u> to enforce such rights or remedies
\nagainst the Borrower, (v) to any permitted assignee under Section 11.06<\/u>,
\n(vi) to any agents and advisors of a Bank solely in connection with the
\nadministration of this Agreement and the Advances and L\/C Obligations hereunder,
\nand (vii) of information which has already become publicly available at the time
\nof such disclosure. In the case of disclosure pursuant to clause (ii)<\/u> or
\n(iii)<\/u> above, the disclosing party agrees, to the extent permitted by
\napplicable law, regulation or judicial process, to promptly notify the Borrower
\nprior to such disclosure and to request confidential treatment if the Borrower
\nso requests.<\/p>\n<\/p>\n EACH BANK ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THIS SECTION
\nFURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
\nINFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE
\nSECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING
\nTHE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
\nNON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW,
\nINCLUDING FEDERAL AND STATE SECURITIES LAWS.<\/strong><\/p>\n<\/p>\nALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS,
\nFURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE
\nCOURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION,
\nWHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS
\nAFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.
\nACCORDINGLY, EACH BANK REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT
\nTHAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO
\nMAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
\nACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.<\/strong><\/p>\n<\/p>\n77<\/p>\n \n
\nSECTION 11.08. Governing Law<\/u>. This Agreement and the Notes shall be
\ngoverned by, and construed in accordance with, the internal laws (as
\ndistinguished from the conflicts of laws rules) of the State of New York.<\/p>\n<\/p>\n SECTION 11.09. Execution in Counterparts<\/u>. This Agreement may be
\nexecuted in any number of counterparts and by different parties hereto in
\nseparate counterparts, each of which when so executed shall be deemed to be an
\noriginal and all of which taken together shall constitute but one and the same
\nagreement.<\/p>\n<\/p>\n SECTION 11.10. Severability<\/u>. Wherever possible, each provision of this
\nAgreement shall be interpreted in such manner as to be effective and valid under
\napplicable law, but if any provision of this Agreement shall be prohibited by or
\ninvalid under applicable law, such provision shall be ineffective only to the
\nextent of such prohibition or invalidity, without invalidating the remainder of
\nsuch provisions or the remaining provisions of this Agreement.<\/p>\n<\/p>\n SECTION 11.11. Entire Agreement<\/u>. This Agreement, taken together with
\nall of the other documents, instruments and certificates contemplated herein to
\nbe delivered by the Borrower, including, without limitation, the fee letters (if
\nany) executed and delivered prior to the effective date of this Agreement by the
\nAdministrative Agent, the Syndication Agents, the Co-Lead Arrangers and the
\nBorrower, embodies the entire agreement and supersedes all prior agreements,
\nwritten and oral, relating to the subject matter hereof as among the Borrower,
\nthe Banks parties hereto and the Administrative Agent.<\/p>\n<\/p>\n SECTION 11.12. Market Disruption<\/u>. Notwithstanding the satisfaction of
\nall conditions referred to in Article II<\/u> and Article VI<\/u> with
\nrespect to any Advance denominated in an Agreed Currency other than in Dollars,
\nif there shall occur on or prior to the date of such Advance any change in
\nnational or international financial, political or economic conditions or
\ncurrency exchange rates or exchange controls which, after the exercise of the
\nAdministrative Agent153s best efforts, would in the reasonable opinion of the
\nAdministrative Agent or the Majority Banks make it materially disadvantageous
\nfor such Advance to be denominated in the Agreed Currency specified by the
\nBorrower, then the Administrative Agent shall forthwith give notice thereof to
\nthe Borrower and the Banks, and such Advance shall not be denominated in such
\nAgreed Currency but shall be made on such Borrowing Date in Dollars, in an
\naggregate principal amount equal to the Dollar Amount of the aggregate principal
\namount specified in the related Notice of Borrowing or Notice of Interest Rate
\nElection, as the case may be, as Base Rate Advances, unless the Borrower
\nnotifies the Administrative Agent within one (1) Domestic Business Day after
\nreceipt of notice from the Administrative Agent that it elects not to borrow on
\nsuch date.<\/p>\n<\/p>\n SECTION 11.13. Judgment Currency<\/u>. If for the purposes of obtaining
\njudgment in any court it is necessary to convert a sum due from the Borrower
\nhereunder in the currency expressed to be payable herein (the “Specified
\nCurrency<\/u>“) into another currency, the parties hereto agree, to the fullest
\nextent that they may effectively do so, that the rate of exchange used shall be
\nthat at which in accordance with normal banking procedures the Administrative
\nAgent could purchase the Specified Currency with such other currency at the
\nAdministrative Agent153s main New York office on the Domestic Business Day
\npreceding that on which final, non-appealable judgment is given. The obligations
\nof the Borrower in respect of any sum due to<\/p>\n<\/p>\n 78<\/p>\n \n
\nany Bank or the Administrative Agent hereunder shall, notwithstanding any
\njudgment in a currency other than the Specified Currency, be discharged only to
\nthe extent that on the Domestic Business Day following receipt by such Bank or
\nthe Administrative Agent (as the case may be) of any sum adjudged to be so due
\nin such other currency such Bank or the Administrative Agent (as the case may
\nbe) may in accordance with normal, reasonable banking procedures purchase the
\nSpecified Currency with such other currency. If the amount of the Specified
\nCurrency so purchased is less than the sum originally due to such Bank or the
\nAdministrative Agent, as the case may be, in the Specified Currency, the
\nBorrower agrees, to the fullest extent that it may effectively do so, as a
\nseparate obligation and notwithstanding any such judgment, to indemnify such
\nBank or the Administrative Agent, as the case may be, against such loss, and if
\nthe amount of the Specified Currency so purchased exceeds (a) the sum originally
\ndue to any Bank or the Administrative Agent, as the case may be, in the
\nSpecified Currency and (b) any amounts shared with other Banks as a result of
\nallocations of such excess as a disproportionate payment to such Bank under
\nSection 5.17<\/u>, such Bank or the Administrative Agent, as the case may be,
\nagrees to remit such excess to the Borrower.<\/p>\n<\/p>\n SECTION 11.14. USA PATRIOT ACT<\/u>. Each Bank that is subject to the
\nrequirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
\nlaw October 26, 2001)) (the “Act<\/u>“) hereby notifies the Borrower that
\npursuant to the requirements of the Act, it is required to obtain, verify and
\nrecord information that identifies the Borrower, which information includes the
\nname and address of the Borrower and other information that will allow such Bank
\nto identify the Borrower in accordance with the Act.<\/p>\n<\/p>\n [Signature Pages Follow]<\/p>\n \n 79<\/p>\n \n
\nThe duly authorized parties hereto have caused this Agreement to be executed
\nby their respective officers or agents, as of the date of this Agreement.<\/p>\n<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n BAXTER INTERNATIONAL INC.<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Robert J. Hombach<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Robert J. Hombach<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Corporate Vice President and Chief Financial Officer<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:
\nOne Baxter Parkway
\nDeerfield, Illinois 60015
\nAttention: Assistant Treasurer
\nTelephone: (847) 948-3282
\nTelecopy: (847) 948-2624<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
\nAdministrative Agent and as a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Robert S. Sheppard<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n 10 South Dearborn
\nChicago, Illinois 60603
\nAttention: Robert S. Sheppard, Vice President
\nTelephone: (312) 732-3144
\nTelecopy: (312) 361-0466<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Nanette Wilson
\nTelephone: (312) 385-7084
\nTelecopy: (312) 385-7096<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowings in foreign currencies:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n J.P. Morgan Europe Limited
\n9th<\/sup> Floor
\n125 London Wall
\nLondon
\nEC2Y 5AJ
\nAttention: The Manager, Loans Agency Section
\nTelephone: +44 20 7777 2940
\nTelecopy: +44 20 7777 2360
\nEmail: Loan_and_Agency@JPMorgan.com<\/p>\n<\/td>\n<\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n BANK OF AMERICA, N.A.,
\nas Syndication Agent and as a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Zubin R. Shroff<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Zubin R. Shroff<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Director<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 100 North Tryon Street, 17th<\/sup> Floor
\nCharlotte, North Carolina 28255
\nAttention: Zubin Shroff
\nTelephone: (980) 387-1340
\nTelecopy: (704) 804-5415<\/p>\n<\/td>\n<\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Rohit Nair
\nTelephone: (415) 436-3683
\nTelecopy: (972) 728-9146<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n CITIBANK, N.A.,
\nas Syndication Agent and as a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Maureen Maroney<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Maureen Maroney<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Authorized Signatory<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n 388 Greenwich St.
\nNew York, New York 10013
\nAttention: Cherry Maceda
\nTelephone: (212) 816-8161
\nEmail: cherry.maceda@citi.com<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n 1615 Brett Road
\nNew Castel, DE 19720
\nAttention: Loan Operations
\nTelephone: (302) 894-6052
\nTelecopy: (212) 994-0847
\nEmail: GLOriginationOps@citigroup.com<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n DEUTSCHE BANK AG NEW YORK BRANCH,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Frederick W. Laird<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Managing Director<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Ming K. Chu<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n 60 Wall Street
\nNew York, NY 10005
\nAttention: Ming K. Chu
\nTelephone: 212-250-5451
\nTelecopy: 212-797-4420<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Lee Joyner
\nTelephone: 904-527-6438
\nTelecopy: 866-240-3622<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n GOLDMAN SACHS BANK USA,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Mark Walton<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Authorized Signatory<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 200 West Street
\nNew York, New York 10282
\nAttention: Lauren Day
\nTelephone: (212) 934-3921
\nTelecopy: (917) 977-3966<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Lauren Day
\nTelephone: (212) 934-3921
\nTelecopy: (917) 977-3966<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n UBS LOAN FINANCE LLC,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Irja R. Otsa<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Associate Director<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Mary C. Evens<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Associate Director<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 677 Washington Blvd.
\nStamford, Connecticut 06901
\nAttention: Samantha Mason
\nTelephone: 203 719 4839
\nTelecopy: 203 719 3390<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Samantha Mason
\nTelephone: 203 719 4839
\nTelecopy: 203 719 3390<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Ari Bruger<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Ari Bruger<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Kevin Buddhdew<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Kevin Buddhdew<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Associate<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n Eleven Madison Avenue
\nNew York, New York 10010
\nAttention: Ari Bruger
\nTelephone: (212) 538-5577
\nTelecopy: (646) 935-8075<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Ari Bruger
\nTelephone: (212) 538-5577
\nTelecopy: (646) 935-8075<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n THE ROYAL BANK OF SCOTLAND, PLC,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ William McGinty<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n William McGinty<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Director<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 600 Washington Blvd
\nStamford, CT 06901
\nAttention: Vijay Shankar
\nTelephone: 203-897-4431
\nTelecopy: 203-873-5019<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Vijay Shankar
\nTelephone: 203-897-4431
\nTelecopy: 203-873-5019<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ George Stoecklein<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 1251 Avenue of the Americas
\nNew York, New York 10020
\nAttention: George Stoecklein
\nTelephone: (212) 782-5572
\nTelecopy: (212) 782-6440<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Jaime Velez – AVP, Loan Operations Dept.
\nTelephone: 201-413-8586
\nTelecopy: 201-521-2304
\nTelecopy: 201-521-2305<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n BARCLAYS BANK PLC,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Vincent J. Muldoon<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Vincent J. Muldoon<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Director North America – MNC<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 1 Churchill Place, London
\nE14 5HP United Kingdon
\nAttention: Vincent Muldoon
\nTelephone: +44 (0)20 7116 4975
\nTelecopy: +44 (0)20 7116 7651<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Tracey Stratford
\nTelephone: +44 (0)203 134 6866
\nTelecopy: +44 (0)207 516 3868<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n HSBC BANK USA, NATIONAL ASSOCIATION,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Andrew Bicker<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 71 South Wacker Drive
\nSuite 2700
\nChicago, Illinois 60606
\nAttention: Andrew Bicker
\nTelephone: (312) 357-3991
\nTelecopy: (312) 357-3999<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Andrew Bicker
\nTelephone: (312) 357-3991
\nTelecopy: (312) 357-3999<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\nve<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n MIZUHO CORPORATE BANK (USA),
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Bertram H. Tang<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Bertram H. Tang<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Senior Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 1251 Avenue of the Americas
\nNew York, New York 10020
\nAttention: Joseph Chan
\nTelephone: (212) 282-4430
\nTelecopy: (212) 282-4488<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n 1800 Plaza Ten, Harborside Financial Ctr.
\nJersey City, New Jersey 07311
\nAttention: Mark Heberer
\nTelephone: (201) 626-9105
\nTelecopy: (201) 626-9941<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n BANK OF CHINA, NEW YORK BRANCH,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Dong Yuan<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Deputy General Manager<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 410 Madison Avenue
\nNew York, New York 10017
\nAttention: John Shen
\nTelephone: (646) 231-3135
\nTelecopy: (212) 308-4993<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: John Shen
\nTelephone: (646) 231-3135
\nTelecopy: (212) 308-4993<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n THE BANK OF NEW YORK MELLON,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Clifford A. Mull<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Clifford A. Mull<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n First Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 6023 Airport Road
\nOriskany, NY 13424
\nAttention: Pamela Clark
\nTelephone: 315-765-4155
\nTelecopy: 315-765-4783<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Pamela Clark
\nTelephone: 315-765-4155
\nTelecopy: 315-765-4783<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n TORONTO DOMINION (TEXAS) LLC,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Debbi L. Brito<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | \n Debbi L. Brito<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Authorized Signatory<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Director<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n 77 King Street West, 18th<\/sup> Floor
\nRoyal Trust Tower,
\nToronto, Ontario M5k 1A2
\nAttention: Josephine Chiu \/ Ruth Bengo
\nTelephone: (416) 983-8927 (416) 983-8879
\nTelecopy: (416) 983-0003<\/p>\n<\/td>\n<\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Carmen Parente
\nTelephone: (212) 827-7526
\nTelecopy: (212) 827-7232<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n STATE STREET BANK AND TRUST COMPANY,
\nas a Bank<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Andrei Bourdine<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Andrei Bourdine<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | \n Assistant Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Address for Notice Purposes:<\/p>\n State Street Bank and Trust Company
\nCorporate Credit Services
\n100 Huntington Ave, tower 1, floor 4
\nAttention: Andrei Bourdine
\nTelephone: 617-662-8616
\nTelecopy: 617-662-8665<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Regarding Syndicated Borrowing
\nFacility and\/or Competitive
\nBid Borrowing Facility:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Attention: Andrei Bourdine
\nTelephone: 617-662-8616
\nTelecopy: 617-662-8665<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to
\nBaxter Four-Year Credit Agreement<\/p>\n \n
\nExhibit 2.02 to
\nFour-Year Credit Agreement
\ndated as of June 17, 2011<\/p>\n<\/p>\n FORM OF<\/p>\n \n NOTICE OF SYNDICATED BORROWING<\/p>\n \n JPMorgan Chase Bank, National Association,
\nas Administrative Agent for the
\nBanks parties to the Credit
\nAgreement referred to below
\n131 S. Dearborn
\nChicago, Illinois 60603<\/p>\n<\/p>\n Attention: Nanette Wilson<\/p>\n<\/p>\n Dear Ms. Wilson:<\/p>\n<\/p>\n The undersigned, Baxter International Inc., refers to the Four-Year Credit
\nAgreement, dated as of June 17, 2011 (the “Credit Agreement<\/u>,” the terms
\ndefined therein being used herein as therein defined), among Baxter
\nInternational Inc., the Banks parties thereto and JPMorgan Chase Bank, National
\nAssociation, as Administrative Agent, and hereby gives you notice, irrevocably,
\npursuant to Section 2.02<\/u> of the Credit Agreement that the undersigned
\nhereby requests a Syndicated Borrowing under the Credit Agreement, and in that
\nconnection sets forth below the information relating to such Syndicated
\nBorrowing (the “Proposed Syndicated Borrowing<\/u>“) as required by
\nSection 2.02<\/u> of the Credit Agreement:<\/p>\n<\/p>\n (i) The Business Day of the Proposed Syndicated Borrowing is ____________,
\n20_.<\/p>\n<\/p>\n (ii) The Type of Syndicated Advances comprising the Proposed Syndicated
\nBorrowing is [Base Rate Advances] [Eurocurrency Rate Advances] [EURIBOR Rate
\nAdvances].<\/p>\n<\/p>\n (iii) The aggregate amount of the Proposed Syndicated Borrowing is [$]
\n[Approximate Dollar Amount of] _________.<\/p>\n<\/p>\n (iv) The Interest Period for each [Eurocurrency Rate Advance] [EURIBOR Rate
\nAdvance] made as part of the Proposed Syndicated Borrowing is [____ months]
\n[____ days].<\/p>\n<\/p>\n (v) The Agreed Currency for each Syndicated Advance made as part of the
\nProposed Syndicated Borrowing is [ _____ ].<\/p>\n<\/p>\n (vi) The proceeds of the Proposed Syndicated Borrowing [will not be used,
\ndirectly or indirectly, to purchase or carry Margin Stock] [will be used to
\npurchase or carry<\/p>\n<\/p>\n Exhibit 2.02
\nPage 1<\/p>\n \n
\nMargin Stock. A duly completed Form FR U-l (OMB No. 7100-0115), executed by a
\nduly authorized officer of the undersigned, accompanies this Notice of
\nSyndicated Borrowing and sets forth thereon the relevant information with
\nrespect to the use of the proceeds of the Proposed Syndicated Borrowing].<\/p>\n<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Very truly yours,<\/p>\n BAXTER INTERNATIONAL INC.<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Exhibit 2.02
\nPage 2<\/p>\n \n
\nExhibit 2.03 to
\nFour-Year Credit Agreement
\ndated as of June 17, 2011<\/p>\n<\/p>\n FORM OF<\/p>\n \n NOTICE OF INTEREST RATE ELECTION<\/p>\n \n JPMorgan Chase Bank, National Association,
\nas Administrative Agent for the
\nBanks parties to the Credit
\nAgreement referred to below
\n131 S. Dearborn
\nChicago, Illinois 60603<\/p>\n<\/p>\n Attention: Nanette Wilson<\/p>\n<\/p>\n Dear Ms. Wilson:<\/p>\n<\/p>\n The undersigned, Baxter International Inc., refers to the Four-Year Credit
\nAgreement, dated as of June 17, 2011 (the “Credit Agreement<\/u>,” the terms
\ndefined therein being used herein as therein defined), among Baxter
\nInternational Inc., the Banks parties thereto and JPMorgan Chase Bank, National
\nAssociation, as Administrative Agent, and hereby gives you notice, irrevocably,
\npursuant to Section 2.03<\/u> of the Credit Agreement of an interest rate
\nelection, and in that connection sets forth below the information relating to
\nthe affected Syndicated Borrowing (the “Affected Syndicated Borrowing<\/u>“)
\nas required by Section 2.03<\/u> of the Credit Agreement:<\/p>\n<\/p>\n\n\n\n| <\/td>\n | \n (i)<\/p>\n<\/td>\n | <\/td>\n | \n The Affected Syndicated Borrowing is the following:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (a)<\/p>\n<\/td>\n | <\/td>\n | \n Type:________________________<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (b)<\/p>\n<\/td>\n | <\/td>\n | \n Last Day of Present Interest Period:________________________<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (c)<\/p>\n<\/td>\n | <\/td>\n | \n Agreed Currency:________________________<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n (d)<\/p>\n<\/td>\n | <\/td>\n | \n Aggregate Amount: [$] [Approximate Dollar Amount of]________________________\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n (ii) The portion of such Affected Syndicated Borrowing to be Converted is:
\n[$] [[Approximate Dollar Amount of] ________________________.<\/p>\n<\/p>\n (iii) Business Day of the Conversion in respect of the Affected Syndicated
\nBorrowing is ________________________, 20____.<\/p>\n<\/p>\n (iv) Upon giving effect to the Conversion,<\/p>\n<\/p>\n Exhibit 2.03
\nPage 1<\/p>\n \n
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