EX-10.1






Exhibit 10.1




 

 






Published CUSIP Number: [___]




CREDIT AGREEMENT




Dated as of June 19, 2008




among




BARR LABORATORIES, INC.,

as Borrower,




and




BARR PHARMACEUTICALS, INC.,




and




CERTAIN SUBSIDIARIES

FROM TIME TO TIME PARTY HERETO,

as Guarantors




BANK OF AMERICA, N.A.,

as Administrative Agent,




and

The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

as

Lead Arranger and Book Manager




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	Section 1.01 Defined Terms

	 	 	1	 
	Section 1.02 Other Interpretive Provisions
	 	 	19	 
	Section 1.03 Accounting Terms
	 	 	19	 
	Section 1.04 Rounding
	 	 	21	 
	Section 1.05 Times of Day
	 	 	21	 
	ARTICLE II TERM LOAN CREDIT FACILITY
	 	 	21	 
	Section 2.01 Term Loan
	 	 	21	 
	Section 2.02 Term Loan Borrowings, Conversions
and Continuations of Term
Loans
	 	 	21	 
	Section 2.03 Prepayments
	 	 	23	 
	Section 2.04 Repayment of Term Loans
	 	 	25	 
	Section 2.05 Interest
	 	 	25	 
	Section 2.06 Fees
	 	 	26	 
	Section 2.07 Computation of Interest and Fees; Adjustments of Applicable Rate
	 	 	26	 
	Section 2.08 Evidence of Debt
	 	 	27	 
	Section 2.09 Payments Generally; Administrative Agent’s Clawback
	 	 	27	 
	Section 2.10 Sharing of Payments by Lenders
	 	 	29	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	30	 
	Section 3.01 Taxes
	 	 	30	 
	Section 3.02 Illegality
	 	 	33	 
	Section 3.03 Inability to Determine Rates
	 	 	33	 
	Section 3.04 Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	33	 
	Section 3.05 Compensation for Losses
	 	 	35	 
	Section 3.06 Mitigation Obligations; Replacement of Lenders
	 	 	36	 
	Section 3.07 Survival
	 	 	36	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	36	 
	Section 4.01 Closing Conditions
	 	 	36	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	38	 
	Section 5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	38	 
	Section 5.02 Authorization; No Contravention
	 	 	38	 
	Section 5.03 Governmental Authorization; Other Consents
	 	 	39	 
	Section 5.04 Binding Effect
	 	 	39	 
	Section 5.05 Financial Statements; No Material Adverse Effect
	 	 	39	 
	Section 5.06 Litigation
	 	 	39	 
	Section 5.07 No Default
	 	 	40	 
	Section 5.08 Ownership of Property; Liens
	 	 	40	 
	Section 5.09 Environmental Compliance
	 	 	40	 
	Section 5.10 Taxes
	 	 	40	 
	Section 5.11 ERISA Compliance
	 	 	41	 






 









 






	 	 	 	 	 
	Section	 	Page	 
	 
	Section 5.12 Subsidiaries
	 	 	41	 
	Section 5.13 Margin Regulations; Investment Company Act
	 	 	42	 
	Section 5.14 Disclosure
	 	 	42	 
	Section 5.15 Compliance with Laws
	 	 	42	 
	Section 5.16 Intellectual Property; Licenses, Etc.
	 	 	42	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	43	 
	Section 6.01 Financial Statements
	 	 	43	 
	Section 6.02 Certificates; Other Information
	 	 	44	 
	Section 6.03 Notices
	 	 	45	 
	Section 6.04 Payment of Obligations
	 	 	46	 
	Section 6.05 Preservation of Existence, Etc.
	 	 	46	 
	Section 6.06 Maintenance of Properties
	 	 	46	 
	Section 6.07 Maintenance of Insurance
	 	 	46	 
	Section 6.08 Compliance with Laws and Contractual Obligations
	 	 	47	 
	Section 6.09 Books and Records
	 	 	47	 
	Section 6.10 Use of Proceeds
	 	 	47	 
	Section 6.11 Additional Guarantors
	 	 	47	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	48	 
	Section 7.01 Liens
	 	 	48	 
	Section 7.02 Investments
	 	 	50	 
	Section 7.03 Non-Loan Party Indebtedness
	 	 	51	 
	Section 7.04 Fundamental Changes
	 	 	52	 
	Section 7.05 Restricted Payments
	 	 	53	 
	Section 7.06 Change in Nature of Business
	 	 	53	 
	Section 7.07 Transactions with Affiliates
	 	 	53	 
	Section 7.08 Restrictive Agreements
	 	 	54	 
	Section 7.09 Use of Proceeds
	 	 	55	 
	Section 7.10 Financial Covenants
	 	 	55	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	56	 
	Section 8.01 Events of Default
	 	 	56	 
	Section 8.02 Remedies Upon Event of Default
	 	 	58	 
	Section 8.03 Application of Funds
	 	 	59	 
	ARTICLE IX ADMINISTRATIVE AGENT
	 	 	60	 
	Section 9.01 Appointment and Authority
	 	 	60	 
	Section 9.02 Rights as a Lender
	 	 	60	 
	Section 9.03 Exculpatory Provisions
	 	 	60	 
	Section 9.04 Reliance by Administrative Agent
	 	 	61	 
	Section 9.05 Delegation of Duties
	 	 	61	 
	Section 9.06 Resignation of Administrative Agent
	 	 	62	 
	Section 9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	62	 
	Section 9.08 No Other Duties, Etc.
	 	 	63	 
	Section 9.09 Administrative Agent May File Proofs of Claim
	 	 	63	 
	Section 9.10 Guaranty Matters
	 	 	64	 
	ARTICLE X MISCELLANEOUS
	 	 	64	 
	Section 10.01 Amendments, Etc.
	 	 	64	 
	Section 10.02 Notices; Effectiveness; Electronic Communication
	 	 	65	 






 









 






	 	 	 	 	 
	Section	 	Page	 
	 
	Section 10.03 No Waiver; Cumulative Remedies
	 	 	67	 
	Section 10.04 Expenses; Indemnity; Damage Waiver
	 	 	67	 
	Section 10.05 Payments Set Aside
	 	 	68	 
	Section 10.06 Successors and Assigns
	 	 	69	 
	Section 10.07 Treatment of Certain Information; Confidentiality
	 	 	73	 
	Section 10.08 Right of Setoff
	 	 	74	 
	Section 10.09 Interest Rate Limitation
	 	 	74	 
	Section 10.10 Counterparts; Integration; Effectiveness
	 	 	74	 
	Section 10.11 Survival of Representations and Warranties
	 	 	75	 
	Section 10.12 Severability
	 	 	75	 
	Section 10.13 Replacement of Lenders
	 	 	75	 
	Section 10.14 Governing Law; Jurisdiction; Etc.
	 	 	76	 
	Section 10.15 Waiver of Jury Trial
	 	 	77	 
	Section 10.16 No Advisory or Fiduciary Responsibility
	 	 	77	 
	Section 10.17 USA PATRIOT Act Notice
	 	 	78	 
	ARTICLE XI GUARANTY
	 	 	79	 
	Section 11.01 The Guaranty
	 	 	79	 
	Section 11.02 Obligations Unconditional
	 	 	79	 
	Section 11.03 Reinstatement
	 	 	80	 
	Section 11.04 Certain Waivers
	 	 	81	 
	Section 11.05 Remedies
	 	 	81	 
	Section 11.06 Rights of Contribution
	 	 	82	 
	Section 11.07 Guaranty of Payment; Continuing Guarantee
	 	 	82	 
	Section 11.08 Release of Guarantee
	 	 	82	 






 









 





SCHEDULES




	 	 	 
	1.01

	 	Permitted Transfers
	2.01

	 	Term Loan Commitments and Applicable Percentages
	5.12

	 	Subsidiaries
	7.01

	 	Existing Liens
	7.02

	 	Existing Investments
	7.03

	 	Existing Indebtedness
	7.07

	 	Existing Affiliate Transactions
	7.08

	 	Restrictive Agreements
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices






EXHIBITS




	 	 	 
	 

	 	Form of
	1.01

	 	Investment Guidelines
	2.02

	 	Form of Term Loan Notice
	2.11(a)

	 	Form of Note
	6.02

	 	Form of Compliance Certificate
	6.11

	 	Form of Guarantor Joinder Agreement
	10.06

	 	Form of Assignment and Assumption







 












 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of June 19, 2008, among Barr
Laboratories, Inc., a Delaware corporation (the “Borrower”), Barr Pharmaceuticals, Inc., a
Delaware corporation (the “Parent”) as a guarantor along with certain Subsidiaries of the
Parent (individually a “Guarantor” and collectively the “Guarantors”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and Bank of America, N.A., as Administrative Agent.



     The Borrower has requested that the Lenders provide a term loan credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




     Section 1.01 Defined Terms.



     As used in this Agreement, the following terms shall have the meanings set forth below:



     “Acquisition” means the acquisition by any Person of (i) all or substantially all of
the Equity Interests in, or the Property of, another Person, or (ii) any product line or segment of
business or division (including, without limitation, the acquisition of rights, production or
distribution of a product or product line) of another Person, whether or not involving a merger or
consolidation with such Person.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrower and the Lenders.



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



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



     “Agreement” means this Credit Agreement, as amended, supplemented or otherwise
modified from time to time.



 









 





     “Applicable Percentage” means with respect to any Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the
amount of the Term Loan funded by such Lender at such time and the denominator of which is the
Outstanding Amount; provided that if the commitment of each Lender to make Term Loans has
been terminated pursuant to Section 8.02, then the Applicable Percentage of each Lender
shall be determined based on the Applicable Percentage of such Lender most recently in effect
giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is
set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means, with respect to that portion of the Term Loan comprised of
“Eurocurrency Rate Loans”, 1.50% per annum, and with respect to that portion of the Term Loan
comprised of Base Rate Loans, 0.00% per annum; provided, that, to the extent the
Consolidated Leverage Ratio as of the end of any fiscal quarter of the Parent is less than 2.5 to
1.0, the Applicable Rate shall be permanently reduced to 1.25% per annum with respect to that
portion of the Term Loan comprised of “Eurocurrency Rate Loans” and 0.00% per annum with respect to
that portion of the Term Loan comprised of Base Rate Loans. Any decrease in the Applicable Rate
resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b).



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arranger” means Banc of America Securities LLC, in its capacity as lead arranger and
book manager.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b), and accepted by the Administrative Agent, in substantially the form of
Exhibit 10.06 or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Parent and its Subsidiaries for the fiscal year ended December 31, 2007, and the related



2









 







consolidated statements of income or retained earnings and cash flows for such fiscal year of
the Parent and its Subsidiaries, including the notes thereto.



     “Bank of America” means Bank of America, N.A. and its successors.



     “BAS” means Banc of America Securities LLC and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a
rate set by Bank of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



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



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located, and, if such day relates to any Eurocurrency
Rate Loan, any such day on which dealings in deposits in Dollars are conducted by and between banks
in the London interbank eurodollar market.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means an event or series of events by which:




     (a) the Parent shall cease to own directly or indirectly 100% on a fully diluted basis
of the voting interest in the Borrower’s capital stock; or




     (b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire (such right, an “option 



3









 







right”), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 35% or more of the equity securities of the
Parent entitled to vote for members of the board of directors or equivalent governing body
of the Parent on a fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option right);




     (c) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Parent cease to be individuals (i)
who were members of that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Compliance Certificate” means a certificate in the form of Exhibit 6.02.



     “Consolidated Assets” means, at any date, the consolidated assets of the Parent and
its Subsidiaries at such date, as determined in accordance with GAAP.



     “Consolidated EBITDA” means, for any period, for the Parent and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income
taxes (including franchise taxes imposed in lieu thereof) payable by the Parent and its
Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) write-offs
(including, without limitation, write-offs and write-downs of acquired in-process research and
development in connection with Acquisitions and any write-off of deferred financing costs in
connection with the prepayment or repurchase of Indebtedness prior to the maturity thereof), (v)
other non-cash charges and expenses of the Parent and its Subsidiaries reducing such Consolidated
Net Income (including, without limitation, non-cash restructuring charges and expenses and
compensation expenses realized for grants of performance shares, stock options, stock purchase
rights or other rights to officers, directors and employees of the Parent or any Subsidiary), (vi)
extraordinary, unusual or non-recurring expense items (including extraordinary litigation or claim
settlement charges or expenses) for such period and the tax consequences thereof, and (vii)
one-time cash expenses incurred in connection with the making of any Investment (including any
Acquisition), the incurrence of Indebtedness or the offering of Equity Interests, in each case not
prohibited by this Agreement, whether or not the applicable transaction is consummated and
minus (b) the following to the extent included in calculating



4









 







such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the
Parent and its Subsidiaries for such period, (ii) all non-cash items increasing Consolidated Net
Income for such period, (iii) extraordinary items of income (other than the proceeds of business
interruption insurance and the proceeds from patent challenge settlements) for such period and the
tax consequences thereof and (iv) any cash payments with respect to the charges and expenses
excluded pursuant to clause (a)(v).



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Parent and its Subsidiaries on a consolidated basis, the sum, without duplication, of (a) the
outstanding principal amount of all obligations, whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (b) the outstanding principal amount of all purchase money
Indebtedness, (c) any obligations consisting of unreimbursed obligations arising under letters of
credit to the extent the time period for the repayment of such obligations has elapsed, bankers’
acceptances, bank guaranties, surety bonds and similar instruments and (d) Attributable
Indebtedness in respect of capital leases and Synthetic Lease Obligations.



     “Consolidated Funded Indebtedness to Total Capitalization Ratio” means, as of any date
of determination, the ratio of (a) Consolidated Funded Indebtedness on such date to (b)
Consolidated Total Capitalization on such date.



     “Consolidated Interest Charges” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the sum of (a) all cash interest expense of the Parent and
its Subsidiaries in connection with borrowed money (including capitalized interest) to the extent
treated as interest in accordance with GAAP minus (b) interest income.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Charges for such period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.



     “Consolidated Net Income” means, for any period, for the Parent and its Subsidiaries
on a consolidated basis, the net income of the Parent and its Subsidiaries for that period;
provided, that net income of any Person that is not a “Loan Party” (as defined in the
Existing Credit Agreement) shall be excluded if and to the extent that, the declaration of
dividends or distributions by that Person of such net income is not, at the time, permitted by the
terms of its charter, or any agreement, instrument, judgment, decree, order, statute, rule or
government regulation applicable to that Person.



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



5









 





     “Consolidated Net Worth” means, as of any date with respect to the Parent and its
Subsidiaries on a consolidated basis, shareholders’ equity or net worth, as determined in
accordance with GAAP.



     “Consolidated Total Capitalization” means, as of any date of determination, the sum of
(a) Consolidated Funded Indebtedness on such date and (b) Consolidated Net Worth on such date.



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



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



     “Corporate Rating” means, as of any date of determination, the rating as determined by
the Ratings Agencies as the Parent’s corporate credit (family) rating (collectively, the “Corporate
Ratings”).



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum;
provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise
applicable to such Term Loan plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Term Loan required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts



6









 







receivable or any rights and claims associated therewith; provided that “Disposition” and
“Dispose” shall not be deemed to include any issuance of any Equity Interest to another Person.



     “Dollar” and “$” mean lawful money of the United States.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Eligible Assets” means property that is used or useful in the business of the Parent
and its Subsidiaries.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include the Parent any of the Parent’s Affiliates or
Subsidiaries.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



7









 





     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Parent within the meaning of Section 414(b) or (c) of the Code (and Section
414(m) of the Code for purposes of provisions relating to Section 412 of the Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Parent or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Parent or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any material liability under Title IV
of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Parent or any ERISA Affiliate.



     “Eurocurrency Rate Loan” means a Term Loan that bears interest at a rate based on the
Eurocurrency Rate.



     “Eurocurrency Base Rate” has the meaning specified in the definition of Eurocurrency
Rate.



     “Eurocurrency Rate” means for any Interest Period with respect to a
Eurocurrency Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the
following formula:



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Eurocurrency Rate
	 	=
	 	 	 	Eurocurrency Base Rate 

	 	 
	 

	 	 
	 	 	 	1.00 -
	 	Eurocurrency Reserve Percentage
	 	 






     Where,




     “Eurocurrency Base Rate” means, for such Interest Period, the rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, for
deposits in Dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time for any
reason, then the “Eurocurrency Base Rate” for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in immediately available funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or converted by Bank
of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London



8









 







interbank eurodollar market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of such Interest Period.



     “Eurocurrency Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate Loan
shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve
Percentage.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), as a result of a present or former
connection between the Administrative Agent, the Lender or any other recipient of payment and the
jurisdiction (or any political subdivision thereof) imposing such tax other than a connection
arising solely by reason of this Agreement or any other Loan Documents or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by
the United States or any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 10.13), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new
Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 3.01(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending
Office (or assignment), to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 3.01(a).



     “Existing Credit Agreement” means that certain Credit Agreement dated as of July 21,
2006 among the Borrower, certain foreign subsidiaries identified as Borrower therein, the Parent,
the other Guarantors identified therein, Bank of America, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer and the other Lenders party thereto, as amended, supplemented or otherwise
modified from time to time.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole



9









 







multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.



     “Fee Letter” means the letter agreement, dated April 4, 2008, among the Borrower, the
Administrative Agent and BAS.



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



     “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States, a State thereof or the District of Columbia.



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



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Granting Lender” has the meaning specified in Section 10.06(g).



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or



10









 







cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any other manner the
obligee in respect of such Indebtedness or other obligation of the payment or performance thereof
or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien
on any assets of such Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien);
provided that an endorsement of any instrument shall not constitute a Guarantee. The
amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount
of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Guarantors” means (a) the Parent, (b) the parties identified on the signature pages
hereto as “Guarantors” and (c) each Person who after the Closing Date becomes a Guarantor pursuant
to a Guarantor Joinder Agreement or other documentation in form and substance reasonably acceptable
to the Administrative Agent, in each case together with their respective successors and permitted
assigns.



     “Guarantor Joinder Agreement” means with respect to any Guarantor, a joinder agreement
substantially in the form of Exhibit 6.11 executed and delivered in accordance with the
provisions of Section 6.11.



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



     “Immaterial Subsidiary” means any Subsidiary of any Loan Party that at any time,
together with its Subsidiaries, owns assets (book value) which constitute less than five percent
(5.00%) of the Consolidated Assets and is designated by the Borrower in writing as an “Immaterial
Subsidiary”; provided, that the aggregate amount of assets (book value) owned by all
Subsidiaries designated as Immaterial Subsidiaries shall not, at any time, exceed fifteen percent
(15.0%) of the Consolidated Assets.



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial, but excluding commercial letters of credit



11









 







supporting the purchase of goods in the ordinary course of business and expiring no
more than six months from the date of issuance), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;




     (c) for purposes of Section 8.01(c) only, net obligations of such Person under
any Swap Contract (other than obligations under any Swap Contract entered into by the Parent
in order to manage existing or anticipated risk associated with the repurchase by the Parent
of shares of its common Equity Interests);




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) capital leases and Synthetic Lease Obligations; and




     (g) all Guarantees of such Person in respect of any of the foregoing.



     The amount of any net obligation under any Swap Contract on any date shall be deemed to be the
Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Term Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Term Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds
three months, the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last
Business Day of each March, June, September and December and the Maturity Date.



     “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the
Borrower in its Term Loan Notice or such other period that is twelve months or less requested by
the Borrower and consented to by all the Lenders; provided that with respect to



12









 







the initial Interest Period, the Borrower may elect an Interest Period for any time period not
to exceed one month ; provided, further that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (ii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “Investment” means, as to any Person, any direct or indirect investment by such
Person, by means of (a) an Acquisition or (b) a loan, advance or capital contribution to, Guarantee
or assumption of debt of, or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of
such other Person. For purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or decreases in the value of
such Investment.



     “Investment Guidelines” means the guidelines set forth in the Parent’s “investment
policy” approved by the Parent’s board of directors on January 17, 2008 (as set forth in
Exhibit 1.01 hereto), as amended by any amendments to such investment policy that do not
modify such investment policy in a manner materially adverse to the Lenders.



     “Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of the Parent or any of its
Subsidiaries.



     “IP Rights” has the meaning specified in Section 5.17.



     “IRS” means the United States Internal Revenue Service.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “Lender” has the meaning specified in the introductory paragraph hereto.



13









 





     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property).



     “Loan Documents” means this Agreement, each Note and each Guarantor Joinder Agreement.



     “Loan Parties” means, collectively, the Borrower, the Parent and each other Guarantor.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, property, operations or financial condition of the Parent and
its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Loan Parties,
taken as a whole, to perform their obligations under any Loan Document; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against the Loan Parties of
any Loan Document.



     “Maturity Date” means [___], 2013; provided, that if such day is not a
Business Day, the Maturity Date shall be the next preceding Business Day.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means any employee pension benefit plan of the type described in
Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which the Parent or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has
made or been obligated to make contributions.



     “Net Cash Proceeds” means the aggregate cash or cash equivalents proceeds received by
the Parent or any Subsidiary in respect of any Disposition, net of (a) costs incurred in connection
therewith (including, without limitation, legal, accounting and investment banking fees, and sales
commissions and other fees and expenses incurred in connection therewith), (b) taxes paid or
payable as a result thereof, (c) the amount necessary to retire any Indebtedness secured by a
Permitted Lien on the related property and (d) amounts required to be prepaid under the Existing
Credit Agreement in respect thereof; it being understood that “Net Cash Proceeds” shall include,
without limitation, any cash or cash equivalents received upon the sale or other disposition of any
non-cash consideration received by the Parent or any Subsidiary in any Disposition; provided that
no net cash proceeds calculated in accordance with the foregoing realized in a single transaction
or series of related transactions shall constitute Net Cash Proceeds unless such Net Cash Proceeds
exceed $1,000,000.



14









 





     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Term Loans made by such Lender to the Borrower, substantially in the form of Exhibit
2.11(a).



     “Obligations” means the unpaid principal of and interest on (including interest and
fees accruing after the Maturity Date and interest accruing after the filing of any proceeding
under any Debtor Relief Laws naming such Person as a debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding) on any Term Loan or any other
monetary obligations and liabilities of any Loan Party to the Administrative Agent or to any Lender
(or in the case of Swap Contracts, any affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise
under, out of, or in connection with this Agreement, any other Loan Document or any Swap Contract
or any other document made, delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity.



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



     “Outstanding Amount” means, as of any date of determination, the aggregate outstanding
principal amount of the Term Loan after giving effect to any prepayments or repayments of the Term
Loan occurring on such date.



     “Parent” means Barr Pharmaceuticals, Inc., a Delaware corporation.



     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Parent or any ERISA Affiliate or to which the Parent or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.



     “Permitted Liens” means, at any time, Liens in respect of property of the Parent or
any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section
7.01.



15









 





     “Permitted Market Investments” means any investment that satisfies the Investment
Guidelines.



     “Permitted Transfers” means (a) Dispositions of inventory and immaterial assets in the
ordinary course of business; (b) Dispositions of obsolete or worn-out property and abandoned or
obsolete intellectual property in the ordinary course of business and Dispositions of property no
longer used or useful in the conduct of business of the Parent and its Subsidiaries that are
Disposed of in the ordinary course of business; (c) Dispositions of property to the Parent or any
Subsidiary; provided, that if the transferor of such property is a Loan Party the
transferee thereof must be a Loan Party; (d) Dispositions of accounts receivable in connection with
the collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to
others not interfering in any material respect with the business of the Parent and its
Subsidiaries; (f) the sale or disposition of cash equivalents for fair market value; (g)
Dispositions of property pursuant to sale-leaseback transactions; (h) Involuntary Dispositions; (i)
Dispositions permitted under Sections 7.04 and 7.05 and Liens permitted under
Section 7.01; (j) Dispositions of property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are promptly applied to the purchase price of such replacement
property; (k) Dispositions made in order to comply with directives or requirements of any
regulatory authority; (l) Dispositions contemplated as of the Closing Date and listed on
Schedule 1.01; and (m) other Dispositions in an aggregate amount not to exceed $10,000,000.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Parent or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



     “Pro Forma Basis” has the meaning specified in Section 1.03(c).



     “Property” means any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible.



     “Ratings Agencies” means S&P and Moody’s and “Ratings Agency” means any one of
them.



     “Register” has the meaning specified in Section 10.06(c).



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



16









 





     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Required Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of the Term Loan. The outstanding Term Loans held or deemed held by, any Defaulting Lender shall
be excluded for purposes of making a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, controller, treasurer, assistant treasurer, secretary or assistant secretary of a Loan
Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary corporate, partnership
and/or other action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.



     “Restricted Payment” means, with respect to any Person, any dividend or other
distribution (whether in cash, securities or other property) with respect to any capital stock or
other Equity Interest issued by such Person, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such capital stock or other Equity
Interest issued by such Person, or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent Person thereof).



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “SPC” has the meaning specified in Section 10.06(g).



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Parent.



     “Swap Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the



17









 







foregoing (including any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “Term Loan” has the meaning provided in Section 2.01.



     “Term Loan Borrowing” means a borrowing consisting of simultaneous Term Loans of the
same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period as made by
each of the Lenders pursuant to Section 2.01.



     “Term Loan Commitment” means, for each Lender, the commitment of such Lender to make a
portion of the Term Loan hereunder; provided that, at any time after funding of the Term
Loan, determinations of “Required Lenders” shall be based on the Outstanding Amount.



     “Term Loan Notice” means a notice of a Term Loan Borrowing, a conversion of Term Loans
from one Type to the other, or a continuation of Eurocurrency Rate Loans, in each case pursuant to
Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit
2.02.



     “Type” means, with respect to a Term Loan, its character as a Base Rate Loan or a
Eurocurrency Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



     “United States” and “U.S.” mean the United States of America.



18









 





     Section 1.02 Other Interpretive Provisions.



     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, and (vi) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.




     (b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means
“to and including.”




     (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.



     Section 1.03 Accounting Terms.




     (a) Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as



19









 







in effect from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.




     (b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders
and the Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.




     (c) Notwithstanding the above, the parties hereto acknowledge and agree that, for
purposes of all calculations made under Section 7.02(d), Section 7.02(p) and
Section 7.05 (in each case, a “Pro Forma Transaction”) and the financial
covenants set forth in Section 7.10.




     (i) if (A) during the applicable four fiscal quarter period used in making such
calculations under Section 7.10 (the “Measuring Period”) or (B) in
the case of any Pro Forma Transaction calculation, to occur after such applicable
Measuring Period (such pro forma calculation to be made as of the last day of the
most recent fiscal quarter for which annual or quarterly financial statements shall
have been delivered), the Parent or any of its Subsidiaries consummates any
Disposition of a Subsidiary, product, product line, business segment or division (x)
income statement items (whether positive or negative) attributable to the Subsidiary
or Property disposed of shall be excluded as if such Disposition had occurred on the
first date of the Measuring Period and (y) Indebtedness which is retired shall be
excluded and deemed to have been retired as of the first day of the Measuring
Period; and




     (ii) if (A) during the Measuring Period or (B) in the case of any Pro Forma
Transaction calculation to occur after such applicable Measuring Period (such pro
forma calculation to be made as of the last day of the most recent fiscal quarter
for which annual or quarterly financial statements shall have been delivered), the
Parent or any of its Subsidiaries consummates any Acquisition (A) income statement
items (whether positive or negative) attributable to the Person or Property acquired
shall be included as if such Acquisition had occurred as of the first date of the
Measuring Period and (B) to the extent not retired in connection with such
Acquisition, Indebtedness of the Person or Property acquired shall be deemed to have
been incurred as of the first day of the Measuring Period.




20











 






     For purposes of determining the Consolidated Leverage Ratio pursuant to any Pro Forma
Transaction, “Pro Forma Basis” shall mean that such ratio is calculated (i) by determining
the denominator in accordance with this Section 1.03(c) and (ii) by taking into
account in the numerator all Indebtedness incurred on the date of the relevant transaction.



     Section 1.04 Rounding.



     Any financial ratios required to be maintained by the Borrower pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if there is no nearest
number).



     Section 1.05 Times of Day.



     Unless otherwise specified, all references herein to times of day shall be references to
Eastern time (daylight or standard, as applicable).



ARTICLE II




TERM LOAN CREDIT FACILITY




     Section 2.01 Term Loan.



     On the Closing Date, each of the Lenders severally agrees to make its portion of a term loan
(in the amount of its respective Term Loan Commitment) to the Borrower in a single advance, in an
aggregate principal amount of THREE HUNDRED MILLION DOLLARS ($300,000,000) (the “Term
Loan”). The Term Loan may consist of Base Rate Loans, Eurocurrency Rate Loans or a combination
thereof, as the Borrower may request; provided that with respect to a Eurocurrency Rate
Loan borrowed on the Closing Date, the Administrative Agent must receive a funding indemnity letter
at least three Business Days prior to the requested date of any Term Loan Borrowing in form and
substance reasonably acceptable to the Administrative Agent. Amounts repaid or prepaid on the Term
Loan may not be reborrowed. The Term Loan Commitments shall terminate upon the initial funding of
the Term Loan.



     Section 2.02 Term Loan Borrowings, Conversions and Continuations of Term Loans.




     (a) Each Term Loan Borrowing, conversion of Term Loans from one Type to the other, and
each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable
notice to the Administrative Agent, which may be given by telephone. Each such notice must
be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Term Loan
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in



21









 






Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate
Loans and (ii) on the requested date of any Term Loan Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Term Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each Term Loan
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except
as provided in Sections 2.03(c) and 2.04(c) each Term Loan Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple
of $100,000 in excess thereof. Each Term Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Term Loan Borrowing, a conversion of Term
Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the
requested date of the Term Loan Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Term Loans to be borrowed,
converted or continued, (iv) the Type of Term Loans to be borrowed or to which existing Term
Loans are to be converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of Term Loan in a Term Loan Notice
or if the Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Term Loans shall be made as, or converted to Base Rate Loans. Any
automatic conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If
the Borrower requests a Term Loan Borrowing, a conversion to or continuation of Eurocurrency
Rate Loans in any such Term Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.




     (b) Following receipt of a Term Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable Term Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in the preceding subsection. In the case of a Term Loan
Borrowing, each Lender shall make the amount of its Term Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s Office not
later than 1:00 p.m. on the Business Day specified in the applicable Term Loan Notice.



     Upon satisfaction or waiver of the applicable conditions set forth in Section 4.01,
the Administrative Agent shall make all funds so received available to the Borrower in like funds
as received by the Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to the Administrative Agent (and reasonably
acceptable to) the Administrative Agent by the Borrower.




     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless
the Borrower pays the amount due, if any, under Section 3.05 in



22









 







connection
therewith. During the existence of a Default, no Term Loans may be requested as, converted
to or continued as Eurocurrency Rate Loans without the consent of the Required Lenders.




     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of
America’s prime rate used in determining the Base Rate promptly following the public
announcement of such change.




     (e) After giving effect to all Borrowings, all conversions of Term Loans from one Type
to the other, and all continuations of Term Loans as the same Type, there shall not be more
than ten (10) Interest Periods in effect with respect to Term Loans.



     Section 2.03 Prepayments.




     (a) Voluntary Prepayments of Term Loans.




     The Borrower may, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay the Term Loan in whole or in part without premium or
penalty; provided that (a) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to any
date of prepayment of Eurocurrency Rate Loans, and (ii) on the date of prepayment of
Base Rate Loans; (b) any prepayment of Eurocurrency Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof;
and (c) any prepayment of Base Rate Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. To the extent that the Borrower
elects to prepay the Term Loan, amounts prepaid under this section shall be applied
to the remaining principal installments thereof as the Borrower may elect (or, if
the Borrower does not make an election, such prepayments shall be applied ratably to
the remaining principal amortization payments). Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Term Loans to be prepaid and,
if Eurocurrency Loans are to be prepaid, the Interest Period(s) of such Term Loans.
The Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s Applicable Percentage of such
prepayment. If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and payable
on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be
accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Term Loans of the Lenders in accordance
with their respective Applicable Percentages.



23









 







     (b) Mandatory Prepayments of Term Loans.




     (i) Dispositions. After any prepayments required under the Existing
Credit Agreement, the Borrower shall prepay the Term Loans as hereafter provided in
an aggregate amount equal to 100% of the Net Cash Proceeds of all Dispositions
(other than Permitted Transfers) to the extent such Net Cash Proceeds are not
reinvested in Eligible Assets within 360 days of the date of such Disposition (or
the Borrower has not entered into a binding agreement to reinvest such Net Cash
Proceeds with 360 days of the date of such Disposition, so long as such transaction
is consummated with 180 days after the date of such binding agreement). Any
prepayment pursuant to this clause (i) shall be applied as set forth in clause (ii)
below.




     (ii) Application of Mandatory Prepayments. All amounts required to be
paid pursuant to this Section 2.03(b) shall be applied to the remaining
principal amortization payments as the Borrower may elect (or, if the Borrower does
not make an election, such prepayments shall be applied ratably to the remaining
principal amortization payments), first to Base Rate Loans and then to Eurocurrency
Rate Loans in direct order of Interest Period maturities. All prepayments under
this Section 2.03(b) shall be subject to Section 3.05, but otherwise
without premium or penalty, and shall be accompanied by interest on the principal
amount prepaid through the date of prepayment.




     (iii) Eurocurrency Prepayment Account. If the Borrower is required to
make a mandatory prepayment of Eurocurrency Rate Loans under this Section
2.03(b), so long as no Event of Default exists, the Borrower shall have the
right, in lieu of making such prepayment in full, to deposit an amount equal to such
mandatory prepayment with the Administrative Agent in a cash collateral account
maintained (pursuant to documentation reasonably satisfactory to the Administrative
Agent) by and in the sole dominion and control of the Administrative Agent. Any
amounts so deposited shall be held by the Administrative Agent as collateral for the
prepayment of such Eurocurrency Rate Loans and shall be applied to the prepayment of
the applicable Eurocurrency Rate Loans at the end of the current Interest Periods
applicable thereto or, sooner, at the election of the Administrative Agent, upon the
occurrence of an Event of Default. At the request of the Borrower, amounts so
deposited shall be invested by the Administrative Agent in cash equivalents maturing
on or prior to the date or dates on which it is anticipated that such amounts will
be applied to prepay such Eurocurrency Rate Loans; any interest earned on such cash
equivalents will be for the account of the Borrower and the Borrower will deposit
with the Administrative Agent the amount of any loss on any such cash equivalents to
the extent necessary in order that the amount of the prepayment to be made with the
deposited amounts may not be reduced.



24









 





     Section 2.04 Repayment of Term Loans.



     The Borrower shall repay the outstanding principal amount of the Term Loan in nineteen (19)
consecutive quarterly installments on the dates and in the amounts set forth in the table below
(provided, however, if such payment date is not a Business Day, such payment shall be due on the
next preceding Business Day) and one (1) installment on the Maturity Date in an amount equal to the
aggregate of all Term Loans outstanding on such date; (as such installments may hereafter be
adjusted as a result of prepayments made pursuant to Section 2.03), unless accelerated
sooner pursuant to Section 8.02:



	 	 	 	 	 
	Payment Dates	 	Principal Amortization Payment
	 
	 	 	 	 
	September 30, 2008

	 	$	7,500,000	 
	December 31, 2008

	 	$	7,500,000	 
	March 31, 2009

	 	$	7,500,000	 
	June 30, 2009

	 	$	7,500,000	 
	September 30, 2009

	 	$	7,500,000	 
	December 31, 2009

	 	$	7,500,000	 
	March 31, 2010

	 	$	7,500,000	 
	June 30, 2010

	 	$	7,500,000	 
	September 30, 2010

	 	$	7,500,000	 
	December 31, 2010

	 	$	7,500,000	 
	March 31, 2011

	 	$	7,500,000	 
	June 30, 2011

	 	$	7,500,000	 
	September 30, 2011

	 	$	7,500,000	 
	December 31, 2011

	 	$	7,500,000	 
	March 31, 2012

	 	$	7,500,000	 
	June 30, 2012

	 	$	7,500,000	 
	September 30, 2012

	 	$	7,500,000	 
	December 31, 2012

	 	$	7,500,000	 
	March 31, 2013

	 	$	7,500,000	 
	Maturity Date

	 	$157,500,000 or the remaining outstanding principal
amount of the Term Loan







     Section 2.05 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan
shall bear interest on the outstanding principal amount thereof for each Interest Period at
a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the
Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the
Base Rate plus the Applicable Rate.



25









 






     (i) If any amount of principal of any Term Loan is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, such amount shall thereafter bear interest until paid at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.




     (ii) If any amount (other than principal of any Term Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise,
then upon the request of the Required Lenders, such amount shall thereafter bear
interest until paid at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Accrued and unpaid interest on past due amounts (including interest on
past due interest) shall be due and payable upon demand.




     (b) Interest on each Term Loan shall be due and payable in arrears on each Interest
Payment Date applicable thereto and at such other times as may be specified herein.
Interest hereunder shall be due and payable in accordance with the terms hereof before and
after judgment, and before and after the commencement of any proceeding under any Debtor
Relief Law.



     Section 2.06 Fees.



     The Borrower shall pay to the Administrative Agent for its own account the fee referred to in
Section 4 of the Fee Letter in the amount and at the times specified therein. Such fee shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



     Section 2.07 Computation of Interest and Fees; Adjustments of Applicable Rate.



     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on
each Term Loan for the day on which the Term Loan is made, and shall not accrue on a Term Loan, or
any portion thereof, for the day on which the Term Loan or such portion is paid, provided
that any Term Loan that is repaid on the same day on which it is made shall, subject to Section
2.10(a), bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.



     (b) If, as a result of any restatement of or other adjustment to the financial statements of
the Parent or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated
Leverage Ratio as calculated by the Parent as of any applicable date was incorrect and (ii) a proper
calculation of the Consolidated Leverage Ratio would have resulted in higher



26









 







pricing for such period, the Borrower shall be obligated to pay to the Administrative Agent for the
account of the applicable Lenders, within five Business Days following demand by the Administrative
Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to
the Borrower under the Bankruptcy Code of the United States, automatically and without further
action by the Administrative Agent or any Lender), an amount equal to the excess of the amount of
interest and fees that should have been paid for such period over the amount of interest and fees
actually paid for such period; provided, that the failure to have paid such amount at the
time it would have been due had the calculation been correct shall not constitute a Default or
Event of Default under Section 8.01(a) to the extent that such amount is paid by the
Borrower within five Business Days following demand by the Administrative Agent. This paragraph
shall not limit the rights of the Administrative Agent or any Lender, as the case may be, under
Section 2.05 or under Article VIII. The Borrower’s obligations under this
paragraph shall survive the termination of the Term Loan Commitments and the repayment of all other
Obligations hereunder.



     Section 2.08 Evidence of Debt.




     The Term Loan Borrowings made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and by the Administrative Agent in the ordinary course
of business. The accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Term Loan Borrowings made by
the Lenders to the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of
any conflict between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Upon the request
of any Lender made through the Administrative Agent, the Borrower shall execute and deliver
to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s
Term Loans in addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, Type (if applicable), amount and maturity of its Term
Loans and payments with respect thereto.



     Section 2.09 Payments Generally; Administrative Agent’s Clawback.




     (a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to
the Administrative Agent, for the account of the respective Lenders to which such payment is
owed, at the applicable Administrative Agent’s Office in Dollars and in immediately
available funds not later than 2:00 p.m. on the date specified herein. Without limiting the
generality of the foregoing, the Administrative Agent may require that any payments due
under this Agreement be made in the United States. The Administrative Agent will promptly
distribute to each Lender its Applicable Percentage (or other applicable share as provided herein)
of such payment in like funds as received



27









 






by wire transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue. If any payment to
be made by the Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.




     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Term Loan Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Term Loan Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Section
2.02 and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the Term
Loan Borrowing available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the Federal Funds Rate, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (B) in
the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate
Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If such Lender
pays its share of the applicable Term Loan Borrowing to the Administrative Agent, then the
amount so paid shall constitute such Lender’s Term Loan included in such Term Loan
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the Administrative
Agent.




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




     A notice of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this subsection (b) shall be conclusive, absent manifest error.



28









 






     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent funds for any Term Loan to be made by such Lender as provided in
the foregoing provisions of this Article II, and such funds are not made available
to the Borrower by the Administrative Agent because the conditions to the applicable Term
Loan Borrowing set forth in Article IV are not satisfied or waived in accordance
with the terms hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.




     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder
to make Term Loans and to make payments pursuant to Section 10.04(c) are several and
not joint. The failure of any Lender to make any Term Loan or to make any payment under
Section 10.04(c) on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be responsible
for the failure of any other Lender to so make its Term Loan, to purchase its participation
or to make its payment under Section 10.04(c).




     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Term Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for any Term Loan
in any particular place or manner.



     Section 2.10 Sharing of Payments by Lenders.



     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Term Loans made by it resulting in
such Lender’s receiving payment of a proportion of the aggregate amount of such Term Loans or
participations and accrued interest thereon greater than its pro rata share thereof
as provided herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the
Term Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Term Loans and other
amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Term
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall apply).



29









 





     Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




     Section 3.01 Taxes.




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




     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.




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




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



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return reporting such payment or other evidence of such payment reasonably satisfactory to
the Administrative Agent.




     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which the Borrower
is resident for tax purposes, or pursuant to any treaty to which such jurisdiction is a
party, with respect to payments hereunder or under any other Loan Document shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent, shall
deliver such other documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent
to determine whether or not such Lender is subject to backup withholding or information
reporting requirements.



     Without limiting the generality of the foregoing, any Foreign Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN (or any
subsequent versions thereof or successors thereto) claiming eligibility for benefits
of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any
subsequent versions thereof or successors thereto),




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3) (A) of the Code, (B) a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN (or any subsequent versions thereof
or successors thereto), or




     (iv) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed
by applicable law to permit the Borrower to determine the withholding or
deduction required to be made.



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     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Borrower, as the
Administrative Agent or the Borrower shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender,
as are required under such Laws to confirm such Lender’s entitlement to any available exemption
from, or reduction of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrower pursuant to this Agreement or otherwise to establish
such Lender’s status for withholding tax purposes in such other jurisdiction. Each Lender shall
promptly (i) notify the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws of any such jurisdiction that the Borrower make any deduction or withholding for
taxes from amounts payable to such Lender. Additionally, the Borrower shall promptly deliver to
the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably
request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and
forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed
and completed by the Borrower, as are required to be furnished by such Lender or the Administrative
Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of
Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such
jurisdiction.




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



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     Section 3.02 Illegality.



     If, after the date hereof, any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or charge
interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans or
to convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended until such Lender notifies
the Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such written notice, the Borrower shall, upon written demand from
such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all such
Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency
Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest
on the amount so prepaid or converted.



     Section 3.03 Inability to Determine Rates.



     If after the date hereof the Required Lenders determine that for any reason in connection with
any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan, or (c) the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent
will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to
make or maintain Eurocurrency Rate Loans shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.



     Section 3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.




     (a) Increased Costs Generally. If, after the date hereof,:




     (i) Any Change in Law shall impose, modify or deem applicable any reserve,
special deposit, compulsory loan, insurance charge or similar requirement against
assets of, deposits with or for the account of, or credit extended or



33









 






participated in by, any Lender (except any reserve requirement reflected in the
Eurocurrency Rate);




     (ii) Any Change in Law shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement or any Eurocurrency Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except
for Indemnified Taxes or Other Taxes covered by Section 3.01 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender); or




     (iii) Any Change in Law shall impose on any Lender or the London interbank
market any other condition, cost or expense affecting this Agreement or Eurocurrency
Loans made by such Lender or any participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Term Loan),
the Borrower will pay to such Lender, such additional amount or amounts as will compensate such
Lender for such additional costs incurred or reduction suffered.





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




     (c) Certificates for Reimbursement. A certificate of a Lender setting forth
the amount or amounts necessary to compensate such Lender or its holding company, as the
case may be, as specified in subsection (a) or (b) of this Section shall be required to be
delivered to the Borrower as a condition to the obligations of the Borrower under such
subsections, shall set forth a calculation by a senior officer of such Lender in reasonable
detail and shall be conclusive absent manifest error. The Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt thereof.




     (d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s right to demand such compensation, provided that the
Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions
of this Section for any increased costs incurred or reductions suffered more than six months
prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s intention to claim



34









 






compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the six-month period referred to above shall be
extended to include the period of retroactive effect thereof).




     (e) Reserves on Eurocurrency Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits (currently
known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of
each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such
Term Loan by such Lender (as determined by such Lender in good faith, which determination
shall be conclusive absent manifest error), which shall be due and payable on each date on
which interest is payable on such Term Loan, provided the Borrower shall have
received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days
from receipt of such notice.



     Section 3.05 Compensation for Losses.



     Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss,
cost or expense incurred by it as a result of:




     (a) any continuation, conversion, payment or prepayment of any Term Loan other than a
Base Rate Loan on a day other than the last day of the Interest Period for such Term Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);




     (b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Term Loan) to prepay, borrow, continue or convert any Term Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrower; or




     (c) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor, but only as a result of a request by the Borrower pursuant to
Section 10.13;




including any loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain such Term Loan or from fees payable to terminate the
deposits from which such funds were obtained (but excluding any loss of the
Applicable Rate for Eurocurrency Rate Loans). The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing.



     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made
by it at the Eurocurrency Base Rate used in determining the Eurocurrency Rate for such Term



35









 







Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in
fact so funded.



     Section 3.06 Mitigation Obligations; Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then
such Lender shall use reasonable efforts to designate a different Lending Office for funding
or booking its Term Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 3.01 or 3.04, as the case may be, in the future, or eliminate the
need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case,
would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.




     (b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section
3.01, the Borrower may replace such Lender in accordance with Section 10.13.



     Section 3.07 Survival.



     All of the Borrower’s obligations under this Article III shall survive termination of
the Term Loan Commitment and repayment of all other Obligations hereunder.



ARTICLE IV




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     Section 4.01 Closing Conditions.



     The obligation of the Lenders to enter into this Credit Agreement is subject to satisfaction
of the following conditions precedent:




     (a) The Administrative Agent’s receipt of the following, each of which shall be
originals, telecopies or copies in portable document format sent through electronic mail
(followed promptly by originals unless otherwise agreed to by the Administrative Agent)
unless otherwise specified, each properly executed by a Responsible Officer of the signing
Loan Party, each dated the Closing Date (or, in the case of certificates of



36









 






governmental officials, a recent date before the Closing Date) and each in form and
substance reasonably satisfactory to the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement;




     (ii) a Note executed by the Borrower in favor of each Lender that has requested
a Note at least two days prior to the Closing Date;




     (iii) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may reasonably require evidencing the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party;




     (iv) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
that the Borrower and each Guarantor is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification,
except to the extent that failure to do so would not reasonably be expected to have
a Material Adverse Effect; and




     (v) a favorable opinion of Simpson, Thacher & Bartlett LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender on the Closing Date,
in a form reasonably acceptable to the Administrative Agent.




     (b) Any fees required to be paid on or before the Closing Date shall have been paid.




     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all
reasonable fees, charges and disbursements of legal counsel to the Administrative Agent to
the extent invoiced at least one Business Day prior to the Closing Date, plus such
additional invoiced amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative Agent).




     (d) The representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith shall be true
and correct in all material respects on and as of the Closing Date (except to the extent
such representations and warranties expressly relate to another date in which case such
representations and warranties shall be true and correct in all material respects as of such
date).




37












 






     (e) No Default shall exist, or would result from the Term Loan Borrowing or from the
application of the proceeds thereof.




     (f) The Closing Date shall have occurred on or before June 30, 2008.



     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or reasonably acceptable or reasonably satisfactory to a Lender unless the Administrative Agent
shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




     Each Loan Party represents and warrants to the Administrative Agent and the Lenders that:



     Section 5.01 Existence, Qualification and Power; Compliance with Laws.



     Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing
and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b)
has all requisite power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver
and perform its obligations under the Loan Documents to which it is a party and (c) is duly
qualified and is licensed and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in the case referred to in clause (a) above with respect to
Immaterial Subsidiaries only and in each case referred to in clause (b)(i) or (c), to the extent
that failure to do so would not reasonably be expected to have a Material Adverse Effect.



     Section 5.02 Authorization; No Contravention.



     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party, have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of any of such Person’s Organization
Documents; (b) conflict with or result in any breach or contravention of, or the creation of any
Lien under, or require any payment to be made under (i) any material Contractual Obligation to
which such Person is a party or affecting such Person or the properties of such Person or any of
its Subsidiaries or (ii) any material order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; or (c) violate any
material Law applicable to such Loan Party or its properties. Each Loan Party



38









 







and each Subsidiary thereof is in compliance with all Contractual Obligations referred to in clause (b)(i),
except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.



     Section 5.03 Governmental Authorization; Other Consents.



     No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document, except (i) such an approval, consent, exemption, authorization, or
other action by, or notice to, or filing with a Person other than a Governmental Authority the
absence of which would not reasonably be expected to have a Material Adverse Effect, (ii) such
approvals, consents, exceptions, authorizations, other actions or notices or filings as have been
obtained, taken or made, as applicable and are in full force and effect and (iii) filings with the
Securities and Exchange Commission.



     Section 5.04 Binding Effect.



     This Agreement has been, and each other Loan Document, when delivered hereunder, will have
been, duly executed and delivered by each Loan Party that is party thereto. This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms subject to Debtor Relief Laws and general principles of equity (whether
considered in a proceeding in equity or law) and an implied covenant of good faith and fair
dealing.



     Section 5.05 Financial Statements; No Material Adverse Effect.




     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Parent and its
Subsidiaries as of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Parent and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.




     (b) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or would reasonably be
expected to have a Material Adverse Effect.



     Section 5.06 Litigation.



     There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
any Responsible Officer of the Parent or the Borrower, threatened, at law, in equity, in



39









 







arbitration or before any Governmental Authority, by or against the Parent or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate would reasonably be expected to have a
Material Adverse Effect.



     Section 5.07 No Default.



     Neither the Parent nor any Subsidiary is in default under or with respect to any Contractual
Obligation in a manner that would, either individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.



     Section 5.08 Ownership of Property; Liens.



     Each of the Parent, the Borrower and each of its Subsidiaries has good record and marketable
title in fee simple to, or valid leasehold interests in, all real property necessary or used in the
ordinary conduct of its business, except for such defects in title as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the
Parent and its Subsidiaries is subject to no Liens, other than Liens permitted by Section
7.01.



     Section 5.09 Environmental Compliance.



     Each of the Parent and the Borrower has reasonably concluded, with respect to the businesses,
operations and properties of the Parent, the Borrower and their respective Subsidiaries that the
effect of existing Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.



     Section 5.10 Taxes.



     Each of the Parent, the Borrower and its Subsidiaries have filed (i) all Federal and state
income tax returns and (ii) all other material Federal, state and other tax returns and reports
required to be filed, and have paid all material Federal, state and other taxes, assessments, fees
and other governmental charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been provided in accordance
with GAAP. To the knowledge of any Responsible Officer of the Parent or the Borrower, there is no
proposed tax assessment against the Parent, the Borrower or any Subsidiary that would, if made,
have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any
tax sharing agreement with any Person that is not a Subsidiary.



40









 





     Section 5.11 ERISA Compliance.




     (a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and
other Federal or state Laws, except where the failure to comply with such
provisions would not reasonably be expected to have a Material Adverse Effect. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is either currently
being processed by the IRS with respect thereto or will be timely filed within applicable
deadlines, and, to the best knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification, except where the failure to qualify would
not reasonably be expected to have a Material Adverse Effect. The Borrower and each ERISA
Affiliate have made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan except for those
that would not, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.




     (b) There are no pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that
would reasonably be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with respect to
any Plan that has resulted or would reasonably be expected to result in a Material Adverse
Effect.




     (c) (i) No ERISA Event that, either individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability that, either individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect; (iii)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA) that, either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect; (iv) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan that, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect; and (v) neither the Borrower nor any ERISA
Affiliate has engaged in a transaction that would be subject to Sections 4069 or 4212(c) of
ERISA that, either individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.



     Section 5.12 Subsidiaries.



     The Domestic Subsidiaries and Foreign Subsidiaries of the Parent and the Borrower and their
respective jurisdictions of incorporation on the Closing Date shall be as set forth on



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Schedule 5.12. The exact legal name of each Loan Party as of the Closing Date is as set forth on the
signature pages hereto.



     Section 5.13 Margin Regulations; Investment Company Act.



     No Loan Party is engaged or will engage, principally or as one of its important activities, in
the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by
the FRB), or extending credit for the purpose of purchasing or carrying margin stock.



     Section 5.14 Disclosure.



     No report, financial statement, certificate or other information furnished (whether in writing
or orally) by a Responsible Officer on behalf of any Loan Party to the Administrative Agent or any
Lender in connection with the transactions contemplated hereby and the negotiation of this
Agreement, hereunder or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished or made available publicly) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that, with respect
to projected financial information, the Parent represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time (it being understood
that the projected financial information is subject to significant uncertainties and contingencies,
many of which are beyond the Parent’s control, and that no assurance can be given that any
projections will be realized).



     Section 5.15 Compliance with Laws.



     Each of the Parent, the Borrower and its Subsidiaries is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect.



     Section 5.16 Intellectual Property; Licenses, Etc.



     Each of the Parent, the Borrower and its Subsidiaries own, or possess the right to use, all of
the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, “IP Rights”) that are
reasonably necessary for the operation of their respective businesses, except as would not
reasonably be expected to have a Material Adverse Effect.



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ARTICLE VI




AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Term Loan Commitment hereunder or any Term Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, the Loan Parties shall and shall cause
their Subsidiaries to (except that the covenants set forth in Sections 6.01, 6.02,
and
6.03 shall not apply to the Subsidiaries):



     Section 6.01 Financial Statements.



     Deliver to the Administrative Agent:




     (a) as soon as available, but in any event within 90 days (or within five days of such
other time period required by the SEC) after the end of each fiscal year of the Parent
(commencing with the fiscal year ended December 31, 2008), a consolidated balance sheet of
the Parent and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited
and accompanied by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any “going concern” or like qualification, assumption or exception
or any qualification, assumption or exception as to the scope of such audit; and




     (b) as soon as available, but in any event within 45 days (or within five days of such
other time period required by the SEC) after the end of each of the first three fiscal
quarters of each fiscal year of the Parent (commencing with the fiscal quarter ended June
30, 2008), a consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal quarter and for the portion of the
Parent’s fiscal year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail, certified by a Responsible
Officer of the Parent as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of the Parent and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.



     The Parent shall not be separately required to furnish information under clause (a) or (b)
above that has previously been furnished pursuant to Section 6.02(d).



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     Section 6.02 Certificates; Other Information.



     Deliver to the Administrative Agent:




     (a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of its independent certified public accountants
certifying such financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default under the financial covenants set forth
herein or, if any such Default shall exist, stating the nature and status of such Default
(which certificate may be limited to the extent required by accounting rules or guidelines);




     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) (commencing with the delivery of the financial
statements for the fiscal quarter ended June 30, 2008), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower, setting forth in the form of
the Compliance Certificate, the computation of the financial covenants in Section
7.10 as of the last day of the fiscal quarter most recently ended;




     (c) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the Parent
generally, and copies of all annual, regular, periodic and special reports and registration
statements which the Parent may file or be required to file with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto; and




     (d) promptly, such additional information regarding the business, financial or
corporate affairs of the Parent or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender through the Administrative Agent may
from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Parent posts such documents, or provides a link thereto on
the Parent’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Parent’s behalf on an Internet or intranet website,
if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or sponsored by the Administrative Agent); provided that the Parent
shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such
documents and, upon the Administrative Agent’s request, provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to provide paper copies
of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above, and in any event
shall have no



44









 







responsibility to monitor compliance by the Borrower with any such request for
delivery, and each Lender shall be solely responsible for maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or BAS will make
available to the Lenders materials and/or information provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Borrower, the Parent or its securities) (each, a “Public
Lender”). The Borrower and the Parent hereby agree that (x) all Borrower Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; and (y) the
Administrative Agent and BAS shall be entitled to treat the Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public
Investor.” Notwithstanding the foregoing, no Borrower shall be under any obligation to mark the
Borrower Materials “PUBLIC.” Notwithstanding anything to the contrary contained in this Agreement,
including Section 8.01 hereof, the failure of the Borrower to comply with the provisions of
this paragraph shall not constitute a Default or an Event of Default hereunder.



     Section 6.03 Notices.



     Promptly notify the Administrative Agent:





     (a) of the occurrence of any Default;




     (b) of any matter that has resulted or would reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Parent, the Borrower or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between the Parent, the Borrower or any
Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Parent, the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws, in each case that has
resulted or would reasonably be expected to result in a Material Adverse Effect;




     (c) of the occurrence of any ERISA Event that, either individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect; and




     (d) of any announcement by any Rating Agency of any change in a Corporate Rating.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to therein and (except in
the case of clause (d)) stating what action the Borrower has taken and proposes to take



45









 







with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity
any and all provisions of this Agreement and any other Loan Document that have been breached.



     Section 6.04 Payment of Obligations.



     Pay and discharge as the same shall become due and payable, all its material obligations and
liabilities, including (a) all material tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets and (b) all material lawful claims which, if unpaid,
would by law become a Lien upon its property (other than a Lien permitted by Section 7.01),
except where the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Parent or its Subsidiaries, as the case may be, except in the case of clause (b),
to the extent any failure to pay, discharge or otherwise satisfy could not reasonably be expected
to have a Material Adverse Effect.



     Section 6.05 Preservation of Existence, Etc.



     (a) Preserve, renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization except (i) in a transaction
permitted by Section 7.04 and (ii) with respect to Immaterial Subsidiaries only, as would
not reasonably be expected to have a Material Adverse Effect; (b) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation or non-renewal of which
would reasonably be expected to have a Material Adverse Effect.



     Section 6.06 Maintenance of Properties.



     (a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted,
except where the failure to do so would not reasonably be expected to have a Material Adverse
Effect and (b) make all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so would not reasonably be expected to have a Material Adverse Effect.



     Section 6.07 Maintenance of Insurance.



     Maintain insurance with respect to its properties and business against loss or damage of the
kinds customarily insured against by Persons engaged in the same or similar business, of such types
and in such amounts as are customarily carried under similar circumstances by such other Persons
and/or maintain a system or systems of self-insurance or assumption of risk which accords with the
practices of similar businesses.



46









 





     Section 6.08 Compliance with Laws and Contractual Obligations.



     Comply in all material respects with the requirements of all (a) Contractual Obligations and
(b) Laws (including Environmental Laws and ERISA matters) and all orders, writs, injunctions and
decrees applicable to it or to its business or property, except in such instances in which (i) such
requirement of Contractual Obligation, Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted; or (ii) the failure to comply
therewith would not reasonably be expected to have a Material Adverse Effect.



     Section 6.09 Books and Records.



     Maintain proper books of record and account, in which true and correct entries in conformity
with GAAP consistently applied shall be made of all financial transactions and matters involving
the assets and business of the Parent or such Subsidiary, as the case may be.



     Section 6.10 Use of Proceeds.



     The Term Loan shall be used (a) to directly or indirectly refinance certain existing
Indebtedness of Pliva d.d. and its Subsidiaries, (b) to pay any costs, fees and expenses associated
with this Agreement on the Closing Date and (c) for working capital, capital expenditures and
general corporate purposes (including share repurchases and permitted Acquisitions).



     Section 6.11 Additional Guarantors.



     Where Domestic Subsidiaries that are not Guarantors (the “Non-Guarantor Domestic
Subsidiaries”) shall at any time:




     (a) in any instance for any such Non-Guarantor Domestic Subsidiary (other than Property
Asset Management USA, Incorporated, Pliva, Inc. and Odyssey Pharmaceuticals, Inc.),
constitute more than five percent (5%) of the Consolidated Assets as of the end of the
immediately preceding fiscal quarter, or




     (b) in the aggregate for all such Non-Guarantor Domestic Subsidiaries (other than
Property Asset Management USA, Incorporated, Pliva, Inc. and Odyssey Pharmaceuticals, Inc.),
constitute more than fifteen percent (15%) of the Consolidated Assets as of the end of the
immediately preceding fiscal quarter,


(clauses (a) and (b) immediately above, collectively, the “Domestic Threshold
Requirement”), then the Borrower shall (i) notify the Administrative Agent thereof within ten
days after a Responsible Officer has knowledge thereof, and (ii) within thirty days thereafter, (A)
cause enough Domestic Subsidiaries to become a Guarantor by execution of a Guarantor Joinder
Agreement, such that immediately after joinder as a Guarantor, the remaining Non-Guarantor Domestic
Subsidiaries shall not in any instance, or collectively, exceed the Domestic Threshold Requirement
and (B) deliver with the Guarantor Joinder Agreement such supporting resolutions, incumbency
certificates, corporate formation and organizational documentation and opinions of counsel as the
Administrative Agent may reasonably request.




47









 








ARTICLE VII




NEGATIVE COVENANTS




     So long as any Lender shall have any Term Loan Commitment hereunder, or any Term Loan or other
Obligation hereunder shall remain unpaid or unsatisfied (other than contingent indemnification
obligations not due and payable), neither the Parent nor the Borrower shall, nor shall they permit any of their respective Subsidiaries to, directly or indirectly (except that
the covenant set forth in Section 7.05 shall only apply to the Parent):



     Section 7.01 Liens.



     Create, incur, assume or suffer to exist any Lien upon any of their property, assets or
revenues, whether now owned or hereafter acquired, other than the following:




     (a) Liens pursuant to any Loan Document;




     (b) Liens existing on the date hereof and listed on Schedule 7.01;




     (c) any modifications, replacements, renewals or extensions of Liens otherwise
permitted hereby (including in connection with refinancings or refundings of the related
obligations), provided that (i) the property covered thereby is not expanded or
increased and (ii) the principal amount of the obligations secured or benefited thereby is
not increased (except for accrued interest and a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred in connection with such renewal or
extension);




     (d) Liens for taxes not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;




     (e) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business securing obligations which are not overdue
for a period of more than 60 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person;




     (f) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance, other social security legislation, product liability
insurance and self-insurance, other than any Lien imposed by ERISA;




     (g) banker’s Liens, rights of setoff, deposits to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations, surety bonds,



48









 







performance bonds and other obligations of a like nature and to secure letters of credit in
respect thereof, in each case incurred in the ordinary course of business;




     (h) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the business of the
applicable Person;




     (i) Liens securing judgments not constituting an Event of Default under Section
8.01(h) or securing appeal or other surety bonds related to such judgments;




     (j) any Lien on any asset securing the payment of all or part of the price of the
acquisition, construction or improvement of such asset; provided that (i) such Liens
do not at any time encumber any property other than the property whose acquisition,
construction or improvement was financed by such Indebtedness and the proceeds thereof and
(ii) the Indebtedness secured thereby does not exceed the cost of the property being
acquired, constructed or improved;




     (k) any Lien existing on any asset of, or Equity Interest in, any Person at the time
such asset is acquired by or such Person becomes, is merged or consolidated with or into, or
is acquired by, a Subsidiary, which Lien was not created in contemplation of such event;




     (l) Liens in favor of the Parent, Liens granted by a Subsidiary that is not a Loan
Party in favor of a Loan Party and Liens granted by a Subsidiary that is not a Loan Party in
favor of a Subsidiary that is not a Loan Party;




     (m) Liens on goods (and the proceeds thereof) and documents of title and the property
covered thereby securing Indebtedness in respect of commercial letters of credit;




     (n) Liens that have been placed by any developer, landlord or other third party on
property over which the Parent or any Subsidiary has easement rights or on any real property
leased by the Parent or any Subsidiary and subordination or similar agreements relating
thereto;




     (o) any condemnation or eminent domain proceedings affecting any real property;




     (p) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of any asset, which asset is acquired by the Parent or a
Subsidiary in a transaction entered into in the ordinary course of business;




     (q) Liens on the proceeds of assets that were subject to Liens permitted hereunder or
on assets acquired with such proceeds as a replacement of such former assets;



49









 






     (r) Liens on the assets of any Subsidiary that is not a Guarantor hereunder, to the
extent securing Indebtedness permitted under Section 7.03;




     (s) Liens arising from precautionary Uniform Commercial Code financing statements
regarding operating leases not constituting Indebtedness or consignments; and




     (t) Liens on the assets of the “Loan Parties” (as defined in the Existing Credit
Agreement) not otherwise permitted hereby securing Indebtedness (without duplication) in an
aggregate principal amount at any time outstanding, together with Indebtedness permitted by
Section 7.03(g), not exceeding an amount equal to 10% of the Consolidated Net Tangible Assets as of the end of the immediately preceding fiscal quarter of the
Parent at the time of incurrence.



     Section 7.02 Investments.



     Make any Investments, except:




     (a) Investments held by the Parent or such Subsidiary in the form of deposit accounts
or cash equivalents;




     (b) advances of payroll payments to employees in the ordinary course of business and
advances to officers, directors and employees of the Parent and Subsidiaries, for travel,
entertainment, relocation and analogous ordinary business purposes or in connection with the
award of stock under stock incentive and stock option plans;




     (c) Investments of the Parent or the Borrower in any Domestic Subsidiary and
Investments of any Subsidiary in the Borrower or in a Domestic Subsidiary;




     (d) Investments in any Foreign Subsidiary; provided, that if such Investment is
by a Loan Party in a Foreign Subsidiary that is not a “Loan Party” (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement, no Default shall have
occurred and be continuing before and after giving effect to such Investment on a Pro Forma
Basis;




     (e) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;




     (f) Permitted Market Investments other than Acquisitions;




     (g) Investments existing on the date hereof and listed on Schedule 7.02 and any
renewals, amendments and replacements thereof to the extent the amount thereof is not
increased;



50









 






     (h) prepayments and other credits to suppliers made in the ordinary course of business;




     (i) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security or similar legislation;




     (j) pledges or deposits in connection with (i) the performance of bids, trade contracts
(other than for borrowed money), leases or statutory obligations, (ii) contingent
obligations on surety or appeal bonds, and (iii) other obligations of a like nature, in each
case incurred in the ordinary course of business;




     (k) operating contracts between or among the Parent and/or its Subsidiaries in the
ordinary course of business that are not intended to be Investments;




     (l) Investments consisting of non-cash consideration received in the form of notes,
securities or similar obligations in connection with any sale or other disposition otherwise
permitted by this Agreement;




     (m) Investments in the form of Swap Contracts;




     (n) Investments in the form of prepaid expenses;




     (o) Investments of a Subsidiary acquired after the Closing Date or of a corporation
merged into the Borrower or merged or consolidated with a Subsidiary after the Closing Date
to the extent that such Investments were not made in contemplation of or in connection with
such acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation and were in existence on the date of such acquisition,
merger or consolidation;




     (p) Investments in the form of Acquisitions and Investments in other Persons,
including, without limitation, joint ventures, for the purpose of developing, producing,
marketing or distributing goods for the Parent or any of its Subsidiaries; provided,
that prior to and after giving effect to any such Acquisition (to the extent the
consideration for such Acquisition does not consist of Equity Interests of the Parent) or
other Investment, no Default shall have occurred and be continuing; and




     (q) other Investments not listed above in an aggregate amount not to exceed $75,000,000
at any time outstanding, net of repayments.



     Section 7.03 Non-Loan Party Indebtedness.



     Permit any Subsidiary that is not a Guarantor to create, incur, assume or suffer to exist any
Indebtedness, except:




     (a) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and
any refinancings, refundings, renewals or extensions thereof; provided that the



51









 







amount of such Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to accrued interest and a reasonable premium
or other reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing, refunding, renewal or extension and by an amount equal to any
existing commitments unutilized thereunder;




     (b) Indebtedness in respect of capital leases, Synthetic Lease Obligations and
obligations for all or part of the price of the acquisition, construction or improvement of
fixed or capital assets within the limitations set forth in Section 7.01(j);




     (c) Indebtedness owing to a “Loan Party” (as defined in the Existing Credit Agreement)
or owing to another Subsidiary that is not a “Loan Party” (as defined in the Existing
Credit Agreement) to the extent the making of such loan by such “Loan Party” (as defined in
the Existing Credit Agreement) or Subsidiary that is not a “Loan Party” (as defined in the
Existing Credit Agreement) is permitted by Section 7.02;




     (d) Swap Contracts not entered into for any speculative purpose but to manage a
Subsidiary’s risks in respect of fluctuations in interest rates, currency exchange rates, or
similar risks or for any other valid business purposes;




     (e) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds
and similar obligations, in each case provided in the ordinary course of business;




     (f) Indebtedness as an account party in respect of trade letters of credit;




     (g) Guarantees of Indebtedness of any Person that is not a Loan Party; and




     (h) secured or unsecured Indebtedness in an aggregate principal amount not to exceed
12.5% of the Consolidated Net Tangible Assets as of the end of the immediately preceding
fiscal quarter of the Parent at the time of incurrence.



     Section 7.04 Fundamental Changes.



     Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default
exists or would result therefrom:




     (a) (i) any Subsidiary of the Parent (other than the Borrower) may merge with (A) the
Parent or the Borrower, provided that the Parent or the Borrower, as the case may
be, shall be the continuing or surviving Person or (B) any one or more Persons,
provided that when any Guarantor is merging with another Person which is not a
Guarantor hereunder, the Guarantor shall be the continuing or surviving Person or the
surviving Person shall become a Guarantor and (ii) the Borrower and the Parent may merge
provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the



52









 







Parent shall be the continuing or surviving Person, (x) the Borrower shall provide written
notice to the Administrative Agent prior to such merger or consolidation and (y) the Parent
shall assume contemporaneously with such merger or consolidation all of the obligations of
the Borrower under this Agreement and the other Loan Documents pursuant to documentation
reasonably satisfactory to the Administrative Agent. Following any merger pursuant to this
Section 8.04(a)(ii), all references to “Parent” and to the “Borrower” shall be read
as references to the Person surviving the merger;




     (b) any Subsidiary of the Parent (other than the Borrower) may Dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise) (i) to the Parent
or to the Borrower or to another Subsidiary and (ii) to any other Person to the extent
that the Net Cash Proceeds of any such Disposition shall prepay the Term Loans to the extent
required by Section 2.03(b)(i); and




     (c) any Subsidiary of the Parent (other than the Borrower) may liquidate or dissolve or
the Parent, the Borrower or any Subsidiary may sell, transfer, lease or otherwise Dispose of
the assets or Equity Interests of any Subsidiary (other than the Borrower) if, in each case,
the Parent or the Borrower determines in good faith that such liquidation, dissolution,
sale, transfer, lease or other Disposition is in the best interests of the Parent or the
Borrower and is not materially disadvantageous to the Lenders.



     Section 7.05 Restricted Payments.



     Declare or make, directly or indirectly, any Restricted Payment except that the Parent may
declare and make cash dividend payments or other distributions with respect to the redemption,
retirement, purchase or other acquisition of the capital stock of the Parent (or any warrant,
option or other rights with respect to any shares of capital stock (including common or preferred)
now or hereafter outstanding of the Parent) so long as no Default shall have occurred and be
continuing before and after giving effect to such payment or distribution on a Pro Forma Basis.



     Section 7.06 Change in Nature of Business.



     Engage in any material line of business substantially different from those lines of business
conducted by the Parent, the Borrower and their Subsidiaries on the date hereof or any business
substantially related, incidental or complementary thereto (and any reasonable extensions or
expansions thereof).



     Section 7.07 Transactions with Affiliates.



     Enter into any transaction of any kind with any Affiliate of the Parent, whether or not in the
ordinary course of business, other than on fair and reasonable terms substantially as favorable to
the Parent, the Borrower or the applicable Subsidiary, as the case may be, as would be obtainable
by the Parent, the Borrower or the applicable Subsidiary, as the case may be, at the time in a
comparable arm’s length transaction with a Person other than an Affiliate; provided that
the foregoing restriction shall not apply to (a) transactions between or among the Parent, the



53









 







Borrower and/or their Subsidiaries and/or any other Person in which the Parent, the Borrower and/or
their Subsidiaries owns an Equity Interest (provided that no Affiliate of the Parent or any
Subsidiary, other than the Parent or a Subsidiary owns any Equity Interests in such other Person),
(b) Restricted Payments permitted by Section 7.05, (c) Investments permitted by Section
7.02, (d) transactions in connection with any joint enterprise or other joint arrangement with
any Affiliate if the Parent or relevant Subsidiary (as applicable) participates on a basis no less
advantageous than the basis on which such Affiliate participates, (e) the payment or grant of
reasonable compensation, benefits and indemnities to, and any other employment or severance
arrangements with, any director, officer, employee or agent of the Parent or any Subsidiary, (f)
loans and other transactions by the Parent, the Borrower and the Subsidiaries to the extent
permitted under this Article 7 and (g) transactions and agreements in existence on the
date hereof and listed on Schedule 7.07, transactions pursuant to such agreements,
renewals, amendments, modifications and extensions of such agreements and transactions after the
date hereof on terms that are substantially similar to the terms of such agreements.



     Section 7.08 Restrictive Agreements.



     Enter into any Contractual Obligation (other than this Agreement or any other Loan Document)
that:




     (a) Limits the ability of the Parent or any Subsidiary to create, incur, assume or
suffer to exist Liens on property of such Person to secure the Obligations hereunder;
provided, however, that the foregoing shall not apply to:




     (A) limitations existing under or by reason of any agreement in effect on the
Closing Date and set forth on Schedule 7.08;




     (B) encumbrances or restrictions existing under or by reason of any document or
instrument governing Indebtedness permitted hereunder, provided that the
encumbrances and restrictions are not materially more restrictive than the
corresponding encumbrances and restrictions contained in the Loan Documents;




     (C) limitations on the transfer of assets subject to a Lien permitted under
Section 7.01 to the extent such limitation relates solely to the assets
which are the subject of such Lien;




     (D) customary limitations on subletting or assignment of any lease governing a
leasehold interest of the Parent or any Subsidiary;




     (E) limitations on the transfer of any property subject to a contract of sale
or transfer so long as such limitations apply only to the property to be sold or
transferred and such sale or transfer is permitted under this Agreement;




     (F) limitations existing under or by reason of any agreement of a Person
acquired by the Parent or any Subsidiary as in effect at the time of such
acquisition (but not created in connection with or in contemplation of such




54









 








acquisition), to the extent that the relevant limitations therein are not applicable
to any Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person so acquired (including its Subsidiaries);




     (G) customary limitations (including financial maintenance covenants) existing
under or by reason of leases entered into in the ordinary course of business;




     (H) customary limitations in joint venture agreements that relate solely to the
joint venture or the Equity Interests therein;




     (I) limitations existing under or by reason of Indebtedness of any Subsidiary
other than a Loan Party that relate solely to such Subsidiary and are in the
ordinary course of business; and




     (J) limitations arising under any public debt securities referred to in
Section 11.08; and




     (K) any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts, instruments
or obligations referred to in clauses (A) through (J) above, provided that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings, are, in the good faith judgment of the
Borrower, not materially less favorable to the Loan Parties and the Lenders with
respect to such limitations than those contained in the contracts, instruments or
obligations prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing; or




     (b) Requires the grant of a Lien to secure an obligation of such Person if a Lien is
granted to secure the Obligations, except for limitations, encumbrances or restrictions
referenced in clauses (A), (B), (F), (I), (J) or (K) of Section 7.08(a).



     Section 7.09 Use of Proceeds.



     Use the proceeds of the Term Loan, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U
of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock,
except, in each case, in compliance with law (including Regulations U and X of the FRB).



     Section 7.10 Financial Covenants.




     (a) Until the Corporate Ratings as determined by the Ratings Agencies shall each be
BBB+ or higher and Baa1 or higher, respectively, as of the end of any fiscal quarter of the
Parent, then:



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     (i) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any fiscal quarter of the Parent to be less
than 3.00 to 1.00.




     (ii) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of the Parent;




     (1) from the Closing Date to and including the fiscal quarter ending
September 30, 2008, to be greater than 3.50 to 1.00.




     (2) at all other times, to be greater than 3.00 to 1.00.




     (b) Once the Corporate Ratings as determined by the Ratings Agencies shall each be BBB+
or higher and Baa1 or higher, respectively, as of the end of any fiscal quarter of the
Parent, and thereafter:




     Consolidated Funded Indebtedness to Total Capitalization. Permit the
Consolidated Funded Indebtedness to Total Capitalization Ratio, at any time, to be
greater than 0.50 to 1.00.



ARTICLE VIII




EVENTS OF DEFAULT AND REMEDIES




     Section 8.01 Events of Default.



     Any of the following shall constitute an Event of Default:




     (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Term Loan, or (ii) within
five days after the same becomes due, any interest on any Term Loan, or any fee due
hereunder or any other amount payable hereunder or under any other Loan Document; or




     (b) Specific Covenants. The Borrower or any other Loan Party fails to perform
or observe any term, covenant or agreement contained in (i) Section 6.03(a) and such
failure continues for 5 days after the earlier of a Responsible Officer becoming aware of
such Default or notice thereof by the Administrative Agent or any Lender or (ii) Section
6.05 (with respect to corporate existence), or 6.10 or Article VII, or
in Article XI; or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30



56









 







days after the earlier of a Responsible Officer becoming aware of such Default or notice thereof
by the Administrative Agent or any Lender; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the Borrower or
any other Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall prove to have been incorrect in any material respect
when made or deemed made; or




     (e) Cross-Default. The Parent or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise, but in any event beyond any period of grace or cure therein
provided) in respect of any Indebtedness (other than Indebtedness hereunder) having an
aggregate principal amount of more than $50,000,000, or (B) fails to observe or perform,
beyond any period of grace or cure therein provided, any other agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its
stated maturity; or




     (f) Insolvency Proceedings, Etc. The Parent or any Subsidiary (other than an
Immaterial Subsidiary) institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its property; or
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is appointed without the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) The Parent or any Subsidiary
(other than an Immaterial Subsidiary) becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully bonded within
60 days after its issue or levy; or




     (h) Judgments. There is entered against the Parent or any Subsidiary (other
than an Immaterial Subsidiary) a final judgment or order for the payment of money in an
aggregate amount exceeding $50,000,000 (to the extent not covered by insurance) and



57









 







there is a period of 60 consecutive days during which (i) a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect and (ii) such judgment or order
has not been paid, vacated or discharged; or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or would reasonably be expected to result in liability
of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
that would reasonably be expected to have a Material Adverse Effect or (ii) the Parent or
any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan and such failure could
reasonably be expected to have a Material Adverse Effect; or




     (j) Invalidity of Loan Documents. Any material provision of any Loan Document,
at any time after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to
be in full force and effect; or any Loan Party contests in any manner the validity or
enforceability of any material provision of any Loan Document; or any Loan Party denies in
writing that it has any or further liability or obligation under any Loan Document (other
than as a result of the repayment in full of the Obligations), or purports to revoke,
terminate or rescind any material provision of any Loan Document; or




     (k) Change of Control. There occurs any Change of Control.



     Section 8.02 Remedies Upon Event of Default.



     If any Event of Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders, take any or all of the following
actions:




     (a) declare the commitment of each Lender to make Term Loans to be terminated,
whereupon such commitments and obligation shall be terminated;




     (b) declare the unpaid principal amount of all outstanding Term Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived by the Borrower; and




     (c) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents;



     provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Term Loans shall automatically terminate and the unpaid principal
amount of all outstanding Term Loans and all interest and other amounts as aforesaid



58









 







shall automatically become due and payable, in each case without further act of the Administrative Agent
or any Lender.



     Section 8.03 Application of Funds.



     After the exercise of remedies provided for in Section 8.02 (or after the Term Loans
have automatically become immediately due and payable as set forth in the proviso to Section
8.02), any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders and amounts payable under
Article III), ratably among them in proportion to the amounts described in this clause
Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Term Loans and other Obligations and fees, premiums and scheduled periodic
payments, and any interest accrued thereon, due under any Swap Contract between any Loan Party and
any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is permitted by
Section 7.02(m), ratably among the Lenders (and, in the case of such Swap Contracts,
Affiliates of Lenders) in proportion to the respective amounts described in this clause Third held
by them;



     Fourth, to (a) payment of that portion of the Obligations constituting unpaid
principal of the Term Loans, (b) payment of breakage, termination or other payments, and any
interest accrued thereon, due under any Swap Contract between any Loan Party and any Lender, or any
Affiliate of a Lender, to the extent such Swap Contract is permitted by Section 7.02(m),
ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) in
proportion to the respective amounts described in this clause Fourth held by them;



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.




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ARTICLE IX




ADMINISTRATIVE AGENT




     Section 9.01 Appointment and Authority.



     Each of the Lenders hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.



     Section 9.02 Rights as a Lender.



     The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity for and generally
engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if
such Person were not the Administrative Agent hereunder and without any duty to account therefor to
the Lenders.



     Section 9.03 Exculpatory Provisions.



     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose,



60









 







any information relating to the Borrower or any of its respective Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     Section 9.04 Reliance by Administrative Agent.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Term Loan that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender prior to the
making of such Term Loan. The Administrative Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected by it, and shall not
be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.



     Section 9.05 Delegation of Duties.



     The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through



61









 







their respective Related Parties. The exculpatory provisions of this Article shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.



     Section 9.06 Resignation of Administrative Agent.



     The Administrative Agent may at any time give notice of its resignation to the Lenders and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, with, so long as no Default or Event of Default shall have occurred or be continuing, the
Borrower’s consent (which consent shall not be unreasonably withheld), to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders, with, so long as no Default or Event of Default shall have occurred or be continuing, the
Borrower’s consent (which consent shall not be unreasonably withheld), appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.



     Section 9.07 Non-Reliance on Administrative Agent and Other Lenders.



     Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem



62









 







appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



     Section 9.08 No Other Duties, Etc.



     Anything herein to the contrary notwithstanding, none of the Bookrunners or Arrangers listed
on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or
any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent
or a Lender hereunder.



     Section 9.09 Administrative Agent May File Proofs of Claim.



     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Term Loan shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Term Loans and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the Administrative
Agent and their respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.03(i) and (j), 2.09 and
10.04) allowed in such judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;



     and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due
for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent under Sections
2.09 and 10.04.



     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



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     Section 9.10 Guaranty Matters.




     (a) If any Domestic Subsidiary that has become a Guarantor solely because of the
requirements of Section 6.11(a) subsequently owns assets (book value) which
constitute less than five percent (5.00%) of the aggregate book value of the Consolidated
Assets for a period of two consecutive fiscal quarters or if a Guarantor ceases to be a
Subsidiary as a result of a transaction permitted hereunder, then such Domestic Subsidiary
shall be released as a Guarantor upon the written request of the Borrower and shall no
longer be a Guarantor hereunder.




     (b) Subject to clause (a) above or Section 11.08 of this Agreement, as
applicable, the Lenders irrevocably authorize the Administrative Agent, to release any
Guarantor from its obligations under Article XI. Upon request by the Administrative Agent
at any time, the Required Lenders will confirm in writing the Administrative Agent’s
authority to release any Guarantor from its obligations under Article XI pursuant to this
Section 9.10 or Section 11.08, as applicable.



ARTICLE X




MISCELLANEOUS




     Section 10.01 Amendments, Etc.



     No amendment or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:




     (a) extend or increase the Term Loan Commitment of any Lender (or reinstate any Term
Loan Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;




     (b) postpone any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;




     (c) reduce the principal of, or the rate of interest specified herein on, any Term
Loan, or (subject to clause (iv) of the second proviso to this Section 10.01) any
fees or other amounts payable hereunder or under any other Loan Document, without the
written consent of each Lender directly affected thereby; provided, however,
that only the consent of the Required Lenders shall be necessary to amend the definition of
“Default Rate” or to waive any obligation of the Borrower to pay interest at the Default
Rate;



64









 






     (d) change Section 2.10 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each
Lender;




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




     (f) release all or substantially all of the Guarantors from their Obligations under
Article XI without the written consent of each Lender (other than a release of any Guarantor
pursuant to Section 11.08 of this Agreement);



     and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Term Loan Commitment of such Lender may not be increased or extended
without the consent of such Lender.



     Section 10.02 Notices; Effectiveness; Electronic Communication.




     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or registered
mail or sent by telecopier as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:




     (i) if to the Borrower or the Administrative Agent, to the address, telecopier
number, electronic mail address or telephone number specified for such Person on
Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire.



     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).



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     (b) Electronic Communications. Notices and other communications to the
Administrative Agent and the Lenders hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender pursuant to Article II if such Lender has notified the
Administrative Agent that it is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




     (c) Change of Address, Etc. Each of the Borrower and the Administrative Agent
may change its address, telecopier or telephone number or e-mail address for notices and
other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number or e-mail address for notices and other
communications hereunder by notice to the Borrower and the Administrative Agent.




     (d) Reliance by Administrative Agent and Lenders. The Administrative Agent and
the Lenders shall be entitled to rely and act upon any notices (including telephonic Term
Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed
by any other form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof, except that such parties may not rely
on such notices if they do so in bad faith or if doing so would be grossly negligent or
would constitute willful misconduct. The Borrower shall indemnify the Administrative Agent,
each Lender and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrower, except for such losses, costs, expenses and liabilities that
result from such parties’ bad faith, gross negligence or willful misconduct. All telephonic
notices to and other telephonic communications with the Administrative Agent may be recorded
by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



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     Section 10.03 No Waiver; Cumulative Remedies.



     No failure by any Lender or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



     Section 10.04 Expenses; Indemnity; Damage Waiver.




     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including
the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in
connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated) but notwithstanding the foregoing, the Borrower shall not be responsible for
the fees, charges or disbursements of more than one firm of legal counsel (and one local
counsel in each applicable jurisdiction) and (ii) all out-of-pocket expenses incurred by the
Administrative Agent or any Lender (including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender), in connection with the enforcement of
its rights in connection with this Agreement and the other Loan Documents, including its
rights under this Section.




     (b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof) and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements of one
counsel (and one local counsel in each applicable jurisdiction) for all Indemnitees),
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a result of (i)
the execution or delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Term Loan or the use or proposed use of the
proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Parent or any of its Subsidiaries, or any
Environmental Liability, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort or any other
theory, and regardless of whether any Indemnitee is a party thereto, in all cases, whether
or not caused by or arising, in whole or in part, out of the comparative, contributory or
sole negligence of the Indemnitee; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses,



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claims, damages, liabilities or related expenses (x) are determined to have resulted
from the bad faith, gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by the Borrower or any other Loan Party against an Indemnitee for
breach of such Indemnitee’s obligations hereunder or under any other Loan Document.




     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason
fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent) or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent) in its
capacity as such, or against any Related Party of the foregoing acting for the
Administrative Agent (or any such sub-agent) in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.09(d).




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, each party hereto shall not assert, and hereby waives, any claim against any
Indemnitee or any other party hereto, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of,
in connection with, or as a result of, this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Term Loan or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.




     (e) Payments. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.




     (f) Survival. The agreements in this Section shall survive the resignation of
the Administrative Agent, the replacement of any Lender, the termination of the Term Loan
Commitments and the repayment, satisfaction or discharge of all the other Obligations.



     Section 10.05 Payments Set Aside.



     To the extent that any payment by or on behalf of the Borrower is made to the Administrative
Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and
such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required



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(including pursuant to any settlement entered into by the Administrative Agent or such Lender
in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under
clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.




     Section 10.06 Successors and Assigns.




     (a) Successors and Assigns Generally. The provisions of this Agreement and the
other Loan Documents shall be binding upon and inure to the benefit of the parties hereto
and thereto and their respective successors and assigns permitted hereby, provided, that
none of the Loan Parties (except in connection with a transaction permitted under
Section 7.04 hereunder), the Parent or the Borrower may assign or otherwise transfer
any of its rights or obligations hereunder or thereunder without the prior written consent
of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer
any of its rights or obligations hereunder except (i) to an assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f) of this
Section (and any other attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.




     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement and the other
Loan Documents (including all or a portion of Term Loans at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Term Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and



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     (B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Term Loan of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 in the
case of an assignment of a portion of the Term Loan unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single assignee (or to an
assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met.




     (ii) [Reserved].




     (iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this Section
and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; and




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to
a Person that is not a Lender, an Affiliate of such Lender or an Approved
Fund with respect to such Lender.




     (iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3.500;
provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.



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Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.





     (c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Term Loan Commitments of, and principal amounts of the
Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice.




     (d) Participations. Any Lender may at any time, without the consent of, or
notice to, any Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower’s Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under
this Agreement (including all or a portion of its Term Loans owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in Section 11.01(a) that affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01,



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3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.10 as though it
were a Lender.




     (e) Limitation on Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.01(e) as though it were a Lender.




     (f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.




     (g) Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle (a “SPC”),
identified as such in writing from time to time by the Granting Lender to the Administrative
Agent and the Borrower, the option to provide all or any part of any Term Loan that such
Granting Lender would otherwise be obligated to make pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to make
any Term Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Term Loan, the Granting Lender shall be obligated to make
such Term Loan pursuant to the terms hereof and (iii) nothing herein shall entitle an SPC to
have or receive any greater rights (including, without limitation, any greater payment under
Section 3.01 or 3.04) than the applicable Lender would have been entitled to
receive hereunder. The making of a Term Loan by an SPC hereunder shall utilize the Term
Loan Commitment of the Granting Lender to the same extent as , and as if, such Term Loan
were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the laws of the
United States or any State thereof. In addition, notwithstanding anything to the contrary
contained in this Section 10.06, any SPC may (i) with notice to, but (except as
provided below) without the prior written consent of, the Borrower and the Administrative
Agent and without paying any processing fee therefor, assign all or a



72









 







portion of its interests in any Term Loans to the Granting Lender or to any financial
institutions (consented to by the Borrower and Administrative Agent) providing
liquidity and/or credit support to or for the account of such SPC to support the funding or
maintenance of Term Loans and (ii) disclose on a confidential basis any non-public
information relating to its Term Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC (it being
agreed that each SPC shall be bound by the provisions of Section 10.7 to the same
extent as if it were a Lender). This section may not be amended without the written consent
of the SPC.




     (h) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions
Act



     Section 10.07 Treatment of Certain Information; Confidentiality.



     Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors
and representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the
Parent or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Parent or any Subsidiary,
provided



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that, in the case of information received from the Parent or any Subsidiary after
the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.



     Section 10.08 Right of Setoff.



     If an Event of Default shall have occurred and be continuing, each Lender and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or
the account of the Borrower or any other Loan Party against any and all of the obligations of the
Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan
Document to such Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of the Borrower or
such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender
different from the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender and their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender or their respective
Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and application.



     Section 10.09 Interest Rate Limitation.



     Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Term Loans or, if it exceeds such unpaid principal,
refunded to the Borrower. In determining whether the interest contracted for, charged, or received
by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee,
or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.



     Section 10.10 Counterparts; Integration; Effectiveness.



     This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and



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supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.



     Section 10.11 Survival of Representations and Warranties.



     All representations and warranties made hereunder and in any other Loan Document or other
document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and warranties have been or
will be relied upon by the Administrative Agent and each Lender, regardless of any investigation
made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of
any Term Loan Borrowing, and shall continue in full force and effect as long as any Term Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied.



     Section 10.12 Severability.



     If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



     Section 10.13 Replacement of Lenders.



     If (a) any Lender requests compensation under Section 3.04, (b) if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, (c) if any Lender is a Defaulting Lender, or (d) if
any Lender fails to consent to any amendment to this Agreement requested by the Parent or the
Borrower which requires the consent of all of the Lenders (or all of the Lenders affected thereby)
and which is consented to by the Required Lenders, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:



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     (i) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);




     (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Term Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.05) from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);




     (iii) such assignment does not conflict with applicable Laws; and




     (iv) if the replacement is being made pursuant to clause (d) above, the
replacement financial institution shall consent to the requested amendment.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     Section 10.14 Governing Law; Jurisdiction; Etc.




     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




     (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE
UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE



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BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY HERETO IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.



     Section 10.15 Waiver of Jury Trial.



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



     Section 10.16 No Advisory or Fiduciary Responsibility.



     In connection with all aspects of each transaction contemplated hereby, the Borrower and each
other Loan Party acknowledges and agrees, that: (i) the credit facilities provided for hereunder
and any related arranging or other services in connection therewith (including in connection with
any amendment, waiver or other modification hereof or of any other Loan Document) are an
arm’s-length commercial transaction between the Borrower, the other Loan Parties and their
respective Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other
hand, and the Borrower and the other Loan Parties are capable of evaluating and understanding and
understand and accept the terms, risks and conditions of the



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transactions contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with the process leading to
such transaction, the Administrative Agent and the Arranger each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for any of the Borrower, any other
Loan Parties or any of their respective Affiliates, stockholders, creditors or employees or any
other Person; (iii) neither the Administrative Agent nor the Arranger has assumed or will assume an
advisory, agency or fiduciary responsibility in favor of the Borrower or any other Loan Party with
respect to any of the transactions contemplated hereby or the process leading thereto, including
with respect to any amendment, waiver or other modification hereof or of any other Loan Document
(irrespective of whether the Administrative Agent or the Arranger has advised or is currently
advising any of the Borrower, the other Loan Parties or their respective Affiliates on other
matters) and neither the Administrative Agent nor the Arranger has any obligation to any of the
Borrower, the other Loan Parties or their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and the Arranger and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative
Agent nor the Arranger has any obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Administrative Agent and the Arranger have
not provided and will not provide any legal, accounting, regulatory or tax advice with respect to
any of the transactions contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and the Borrower and each other Loan Party has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. The
Borrower and each other Loan Party hereby waives and releases, to the fullest extent permitted by
law, any claims that it may have against the Administrative Agent and the Arranger with respect to
any breach or alleged breach of agency or fiduciary duty.



     Section 10.17 USA PATRIOT Act Notice.



     Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of each of the Borrower and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Act. The Borrower shall, following a request by the Administrative
Agent or any Lender, provide all documentation and other information that the Administrative Agent
or such Lender reasonably requests in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the Act.



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ARTICLE XI

GUARANTY




     Section 11.01 The Guaranty.




     (a) Each of the Guarantors hereby jointly and severally guarantees to each Lender and
the Administrative Agent and each Lender and each Affiliate of a Lender that enters into a
Swap Contract, as primary obligor and not as surety, the prompt payment of the Obligations
in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as
a mandatory cash collateralization or otherwise) strictly in accordance with the terms
thereof. The Guarantors hereby further agree that if any of the Obligations are not paid in
full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Guarantors will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Obligations, the same will be promptly
paid in full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance with the
terms of such extension or renewal.




     (b) Notwithstanding any provision to the contrary contained herein or in any other of
the Loan Documents or Swap Contracts, the obligations of each Guarantor (in its capacity as
such) under this Agreement and the other Loan Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations subject to
avoidance under the Debtor Relief Laws or any comparable provisions of any applicable Law.



     Section 11.02 Obligations Unconditional.




     (a) The obligations of the Guarantors under Section 11.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Loan Documents or Swap Contracts, or any other
agreement or instrument referred to therein, or any substitution, compromise, release,
impairment or exchange of any other guarantee of or security for any of the Obligations,
and, to the fullest extent permitted by applicable Law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Section 11.02 that the
obligations of the Guarantors hereunder shall be absolute and unconditional under any and
all circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or any other
Guarantor for amounts paid under this Article XI until such time as the Obligations
have been irrevocably paid in full and the commitments relating thereto have expired or
terminated.




     (b) Without limiting the generality of the foregoing subsection (a), it is
agreed that, to the fullest extent permitted by Law, the occurrence of any one or more of
the



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following shall not alter or impair the liability of any Guarantor hereunder, which
shall remain absolute and unconditional as described above:




     (i) at any time or from time to time, without notice to any Guarantor, the time
for any performance of or compliance with any of the Obligations shall be extended,
or such performance or compliance shall be waived;




     (ii) any of the acts mentioned in any of the provisions of any of the Loan
Documents, any Swap Contract between any Loan Party and any Lender, or any Affiliate
of a Lender or any other agreement or instrument referred to therein shall be done
or omitted;




     (iii) the maturity of any of the Obligations shall be accelerated, or any of
the Obligations shall be modified, supplemented or amended in any respect, or any
right under any of the Loan Documents, any Swap Contract between any Loan Party and
any Lender, or any Affiliate of a Lender or any other agreement or instrument
referred to therein shall be waived or any other guarantee of any of the Obligations
or any security therefor shall be released, impaired or exchanged in whole or in
part or otherwise dealt with;




     (iv) any Lien granted to, or in favor of, the Administrative Agent or any
holder of the Obligations as security for any of the Obligations shall fail to
attach or be perfected; or




     (v) any of the Obligations shall be determined to be void or voidable
(including for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including any creditor of any Guarantor).




     (c) With respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest, notice of acceptance of the guaranty
given hereby and of extensions of credit that may constitute obligations guaranteed hereby,
notices of amendments, waivers, consents and supplements to the Loan Documents, any Swap
Contract between any Loan Party and any Lender, or any Affiliate of a Lender, or the
compromise, release or exchange of collateral or security, and all other notices whatsoever,
and any requirement that the Administrative Agent or any holder of the Obligations exhaust
any right, power or remedy or proceed against any Person under any of the Loan Documents or
any other documents relating to the Obligations or any other agreement or instrument
referred to therein, or against any other Person under any other guarantee of, or security
for, any of the Obligations.



     Section 11.03 Reinstatement.



     Neither the Guarantors’ obligations hereunder nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by an impairment, modification,
change, release or limitation of the liability of the Borrower, by reason of the Borrower’s
bankruptcy or insolvency or by reason of the invalidity or unenforceability of



80









 







all or any portion of the Obligations. In addition, the obligations of each Guarantor under
this Article XI shall be automatically reinstated if and to the extent that for any reason
any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result of any Debtor
Relief Law or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent
and each holder of the Obligations on demand for all reasonable costs and expenses (including
reasonable attorneys’ fees and disbursements) incurred by the Administrative Agent or such holder
of the Obligations in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any Debtor Relief Law.



     Section 11.04 Certain Waivers.



     Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced
without the necessity of resorting to or otherwise exhausting remedies in respect of any other
security or collateral interests, and without the necessity at any time of having to take recourse
against the Borrower hereunder or against any collateral securing the Obligations or otherwise, (b)
it will not assert any right to require the action first be taken against the Borrower or any other
Person (including any co-guarantor) or pursuit of any other remedy or enforcement any other right,
(c) it will not assert any defenses (i) with respect to any change in the corporate existence or
structure of the Borrower, (ii) with respect to any Law of any jurisdiction or any event affecting
any term of the obligations of each Guarantor under this Article XI or (iii) as a result or
related to any other circumstance that might constitute a defense of the Borrower or any Guarantor,
(d) it will not assert any claims or set-off rights that such Guarantor may have and (e) nothing
contained herein shall prevent or limit action being taken against the Borrower hereunder, under
the other Loan Documents or the other documents and agreements relating to the Obligations or from
foreclosing on any security or collateral interests relating hereto or thereto, or from exercising
any other rights or remedies available in respect thereof, if neither the Borrower nor the
Guarantors shall timely perform their obligations, and the exercise of any such rights and
completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors’
obligations hereunder unless as a result thereof, the Obligations shall have been paid in full and
the commitments relating thereto shall have expired or terminated, it being the purpose and intent
that the Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional
under all circumstances. Each Guarantor agrees that such Guarantor shall have no right of recourse
to security for the Obligations, except through the exercise of rights of subrogation pursuant to
Section 11.02 and through the exercise of rights of contribution pursuant to Section
11.06.



     Section 11.05 Remedies.



     The Guarantors agree that, to the fullest extent permitted by Law, as between the Guarantors,
on the one hand, and holders of the Obligations, on the other hand, the Obligations may be declared
to be forthwith due and payable as provided in Section 8.02 (and shall be deemed to have
become automatically due and payable in the circumstances specified in Section 8.02) for
purposes of Section 11.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from becoming



81









 







automatically due and payable) as against any other Person and that, in the event of such declaration (or the
Obligations being deemed to have become automatically due and payable), the Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 11.01.



     Section 11.06 Rights of Contribution.



     The Guarantors hereby agree as among themselves that, in connection with payments made
hereunder, each Guarantor shall have a right of contribution from each other Guarantor in
accordance with applicable Law. Such contribution rights shall be subordinate and subject in right
of payment to the Obligations until such time as the Obligations have been irrevocably paid in full
and the commitments relating thereto shall have expired or been terminated, and none of the
Guarantors shall exercise any such contribution rights until the Obligations have been irrevocably
paid in full and the commitments relating thereto shall have expired or been terminated.



     Section 11.07 Guaranty of Payment; Continuing Guarantee.



     The guarantee given by the Guarantors in this Article XI is a guaranty of payment and
not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.



     Section 11.08 Release of Guarantee.



     Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents or Swap Contracts, to the extent the Parent or any of its Subsidiaries issues any public
debt securities (the “Public Debt”), and the initial purchasers of such Public Debt would
not require Subsidiaries of the Parent (other than the Borrower) to guarantee such Public Debt but
for the fact that such Guarantors are guarantors of this Agreement, the Borrower shall have the
option to release such Guarantors (other than the Parent) (the “Released Subsidiaries”)
from their obligations under this Agreement and the other Loan Documents to the extent that such
Released Subsidiaries do not guaranty (a) such Public Debt (at the time of such release or in the
future) or (b) the Existing Credit Agreement (at the time of such release or in the future) (it
being understood that to the extent any such Released Subsidiary becomes a guarantor under either
the Public Debt or the Existing Credit Agreement, they shall become a guarantor hereunder as
required by and pursuant to the terms of Section 6.11). Upon the delivery by the Borrower
to the Administrative Agent of an Officer’s Certificate to the effect that the transaction giving
rise to the release of this Guarantee was made by the Borrower in accordance with the provisions of
this Agreement, the Lenders shall execute any documents reasonably required in order to evidence
the release of the Guarantors (other than the Parent) from their obligations under this Agreement
and the other Loan Documents. It is understood and agreed that, to the extent the Guarantors
(other than the Parent) are released from their obligations under this Agreement and the other Loan
Documents pursuant to this Section 11.08, the Parent shall remain a Guarantor hereunder and
shall not be released from its obligations under this Agreement and the other Loan Documents.



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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	BORROWER:               	BARR LABORATORIES, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Christine Mundkur	 
	 	 	Name:  	Christine Mundkur	 
	 	 	Title:  	Chief
Executive Officer	 
	 
	GUARANTORS:       	BARR PHARMACEUTICALS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ William
T. McKee	 
	 	 	Name:  	William
T. McKee	 
	 	 	Title:  	Executive Vice President, Chief Financial Officer	 
	 
	 	BARR DISTRIBUTION COMPANY,

a Delaware corporation

 	 
	 	By:  	/s/ Michael
Bogda	 
	 	 	Name:  	Michael
Bogda	 
	 	 	Title:  	President	 
	 
	 	DURAMED PHARMACEUTICALS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Fred
Wilkinson	 
	 	 	Name:  	Fred
Wilkinson	 
	 	 	Title:  	Chief Executive Officer	 



 









 






	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Angela Lau	 
	 	 	Name:  	Angela Lau	 
	 	 	Title:  	Assistant Vice President	 
	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Lender

 	 
	 	By:  	/s/ Kevin
Wagley	 
	 	 	Name:  	Kevin
Wagley	 
	 	 	Title:  	Senior Vice President