EX-10.2



 



Exhibit 10.2




 

 







CREDIT AGREEMENT


dated as of


October 2, 2007


among


MYLAN LABORATORIES INC.


MYLAN LUXEMBOURG 5 S.A R.L.


The Lenders Party Hereto


LASALLE BANK, NATIONAL ASSOCIATION


and


THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,

as Co-Documentation Agents


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,


and


CITIBANK, N.A.

as Co-Syndication Agents


and


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent


 




MERRILL LYNCH & CO.,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

CITIGROUP GLOBAL MARKETS INC.,

as Joint Bookrunners and Joint Lead Arrangers



 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I

 
	DEFINITIONS

	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Defined Terms
	 	 	1	 
	SECTION 1.02.

	 	Classification of Loans and Borrowings
	 	 	42	 
	SECTION 1.03.

	 	Terms Generally
	 	 	42	 
	SECTION 1.04.

	 	Accounting Terms; GAAP
	 	 	43	 
	SECTION 1.05.

	 	Payments on Business Days
	 	 	43	 
	SECTION 1.06.

	 	Pro Forma Compliance
	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	THE CREDITS

	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Commitments
	 	 	44	 
	SECTION 2.02.

	 	Loans and Borrowings
	 	 	44	 
	SECTION 2.03.

	 	Requests for Revolving Borrowings
	 	 	45	 
	SECTION 2.04.

	 	Determination of Dollar Amounts
	 	 	46	 
	SECTION 2.05.

	 	Swingline Loans
	 	 	46	 
	SECTION 2.06.

	 	Letters of Credit
	 	 	48	 
	SECTION 2.07.

	 	Funding of Borrowings
	 	 	53	 
	SECTION 2.08.

	 	Interest Elections
	 	 	54	 
	SECTION 2.09.

	 	Termination and Reduction of Commitments
	 	 	56	 
	SECTION 2.10.

	 	Repayment of Loans; Evidence of Debt
	 	 	56	 
	SECTION 2.11.

	 	Prepayment of Loans
	 	 	59	 
	SECTION 2.12.

	 	Fees
	 	 	63	 
	SECTION 2.13.

	 	Interest
	 	 	64	 
	SECTION 2.14.

	 	Alternate Rate of Interest
	 	 	65	 
	SECTION 2.15.

	 	Increased Costs
	 	 	66	 
	SECTION 2.16.

	 	Break Funding Payments
	 	 	67	 
	SECTION 2.17.

	 	Taxes
	 	 	68	 
	SECTION 2.18.

	 	Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	70	 
	SECTION 2.19.

	 	Mitigation Obligations; Replacement of Lenders
	 	 	72	 
	SECTION 2.20.

	 	Expansion Option
	 	 	73	 
	SECTION 2.21.

	 	Market Disruption
	 	 	75	 
	SECTION 2.22.

	 	Judgment Currency
	 	 	75	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Organization; Powers; Subsidiaries
	 	 	76	 






-i-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 3.02.

	 	Authorization; Enforceability
	 	 	77	 
	SECTION 3.03.

	 	Governmental Approvals; No Conflicts
	 	 	77	 
	SECTION 3.04.

	 	Financial Statements; Financial Condition; No Material
Adverse Change
	 	 	77	 
	SECTION 3.05.

	 	Properties
	 	 	78	 
	SECTION 3.06.

	 	Litigation and Environmental Matters
	 	 	78	 
	SECTION 3.07.

	 	Compliance with Laws and Agreements
	 	 	79	 
	SECTION 3.08.

	 	Investment Company Status
	 	 	79	 
	SECTION 3.09.

	 	Taxes
	 	 	79	 
	SECTION 3.10.

	 	Solvency
	 	 	79	 
	SECTION 3.11.

	 	Labor Matters
	 	 	79	 
	SECTION 3.12.

	 	Disclosure
	 	 	79	 
	SECTION 3.13.

	 	Federal Reserve Regulations
	 	 	80	 
	SECTION 3.14.

	 	Security Interests
	 	 	80	 
	 
	 	 	 	 	 	 
	ARTICLE IV

 
	CONDITIONS

	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Initial Credit Events
	 	 	80	 
	SECTION 4.02.

	 	Subsequent Credit Events
	 	 	83	 
	 
	 	 	 	 	 	 
	ARTICLE V

 
	AFFIRMATIVE COVENANTS

	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Financial Statements and Other Information
	 	 	83	 
	SECTION 5.02.

	 	Notices of Material Events
	 	 	85	 
	SECTION 5.03.

	 	Existence; Conduct of Business
	 	 	85	 
	SECTION 5.04.

	 	Payment of Obligations
	 	 	86	 
	SECTION 5.05.

	 	Maintenance of Properties; Insurance
	 	 	86	 
	SECTION 5.06.

	 	Inspection Rights
	 	 	86	 
	SECTION 5.07.

	 	Compliance with Laws; Compliance with Agreements
	 	 	87	 
	SECTION 5.08.

	 	Use of Proceeds and Letters of Credit
	 	 	87	 
	SECTION 5.09.

	 	Further Assurances; Additional Security and Guarantees
	 	 	87	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	NEGATIVE COVENANTS

	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Indebtedness
	 	 	89	 
	SECTION 6.02.

	 	Liens
	 	 	92	 
	SECTION 6.03.

	 	Fundamental Changes
	 	 	94	 
	SECTION 6.04.

	 	Restricted Payments
	 	 	95	 
	SECTION 6.05.

	 	Investments
	 	 	96	 
	SECTION 6.06.

	 	Prepayments, Etc. of Indebtedness
	 	 	98	 






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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 6.07.

	 	Transactions with Affiliates
	 	 	99	 
	SECTION 6.08.

	 	Changes in Fiscal Year
	 	 	99	 
	SECTION 6.09.

	 	Financial Covenant
	 	 	101	 
	SECTION 6.10.

	 	Restrictive Agreements
	 	 	103	 
	SECTION 6.11.

	 	Dispositions
	 	 	103	 
	SECTION 6.12.

	 	Lines of Business
	 	 	105	 
	 
	 	 	 	 	 	 
	ARTICLE VII

 
	EVENTS OF DEFAULT

	 
	 	 	 	 	 	 
	ARTICLE VIII

 
	THE ADMINISTRATIVE AGENT

 
	ARTICLE IX

 
	MISCELLANEOUS

	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Notices
	 	 	115	 
	SECTION 9.02.

	 	Waivers; Amendments
	 	 	116	 
	SECTION 9.03.

	 	Expenses; Indemnity; Damage Waiver
	 	 	118	 
	SECTION 9.04.

	 	Successors and Assigns
	 	 	119	 
	SECTION 9.05.

	 	Survival
	 	 	123	 
	SECTION 9.06.

	 	Counterparts; Integration; Effectiveness
	 	 	123	 
	SECTION 9.07.

	 	Severability
	 	 	123	 
	SECTION 9.08.

	 	Right of Setoff
	 	 	124	 
	SECTION 9.09.

	 	Governing Law; Jurisdiction; Consent to Service of Process
	 	 	124	 
	SECTION 9.10.

	 	WAIVER OF JURY TRIAL
	 	 	125	 
	SECTION 9.11.

	 	Headings
	 	 	126	 
	SECTION 9.12.

	 	Confidentiality
	 	 	126	 
	SECTION 9.13.

	 	USA PATRIOT Act
	 	 	126	 
	SECTION 9.14.

	 	Interest Rate Limitation
	 	 	127	 
	SECTION 9.15.

	 	No Fiduciary Duty
	 	 	127	 






	 	 	 	 	 
	SCHEDULES:
	 	 	 	 
	Schedule 1.01A

	 	—
	 	Applicable Rate
	Schedule 1.01B

	 	—
	 	Notice Requirements for Borrowings
	Schedule 2.01

	 	—
	 	Commitments
	Schedule 2.02

	 	—
	 	Mandatory Cost
	Schedule 2.03

	 	—
	 	Description of Specified Litigation
	Schedule 3.01

	 	—
	 	Subsidiaries
	Schedule 3.06

	 	—
	 	Disclosed Matters






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	Schedule 5.09(c)

	 	—
	 	Post-Closing Matters
	Schedule 6.01

	 	—
	 	Existing Indebtedness
	Schedule 6.02

	 	—
	 	Existing Liens
	Schedule 6.05

	 	—
	 	Investments
	Schedule 6.07

	 	—
	 	Affiliate Transactions
	Schedule 6.11

	 	—
	 	Dispositions
	 
	 	 	 	 
	EXHIBITS:
	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B-1

	 	—
	 	Form of Opinion of the Company’s Special New York Counsel
	Exhibit B-2

	 	—
	 	Forms of Opinions of Loan Parties’ Corporate Counsel
	Exhibit C

	 	—
	 	Form of Increasing Lender Supplement
	Exhibit D

	 	—
	 	Form of Augmenting Lender Supplement
	Exhibit E

	 	—
	 	List of Closing Documents
	Exhibit F

	 	—
	 	Form of U.S. Guarantee and Security Agreement
	Exhibit G-1

	 	—
	 	Form of Revolving Borrowing Request
	Exhibit G-2

	 	—
	 	Form of Swingline Loan Borrowing Request
	Exhibit G-3

	 	—
	 	Form of Interest Election Request
	Exhibit G-4

	 	—
	 	Form of Letter of Credit Issuance Request
	Exhibit H

	 	—
	 	Form of Compliance Certificate
	Exhibit I

	 	—
	 	Form of Mortgage
	Exhibit J

	 	—
	 	Form of Foreign Lender Certification






-iv-









 






          CREDIT AGREEMENT (this “Agreement”) dated as of October 2, 2007 among MYLAN
LABORATORIES INC., MYLAN LUXEMBOURG 5 S.A R.L., the LENDERS party hereto, LASALLE BANK NATIONAL
ASSOCIATION and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Co-Documentation
Agents, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and CITIBANK, N.A., as Co-Syndication
Agents, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent.




          The parties hereto agree as follows:




ARTICLE I




Definitions




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




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




          “Acquired Business” means the generics business operated by various subsidiaries of
Merck KGaA to be acquired by the Company or one or more of its Subsidiaries pursuant to the
Acquisition Agreement, including, for the avoidance of doubt, any Excluded Businesses (as defined
in the Acquisition Agreement) acquired pursuant to Section 15.7 of such Acquisition Agreement.




          “Acquired Entity or Business” means each Person, property, business or assets acquired
by the Company or a Subsidiary, to the extent not subsequently sold, transferred or otherwise
disposed of by the Company or such Subsidiary.




          “Acquisition” means the acquisition by the Company or one or more of its Subsidiaries
of the Acquired Business pursuant to the terms of the Acquisition Agreement.




          “Acquisition Agreement” means the Share Purchase Agreement dated as of May 12, 2007,
among Mylan, Merck Generics Holding GmbH, Merck S.A., Merck Internationale Beteiligung GmbH and
Merck KGaA, as amended.




          “Adjusted EURIBO Rate” means, with respect to any Eurocurrency Borrowing denominated
in euro for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the sum of (i) (a) the EURIBO Rate for such Interest Period multiplied by
(b) the Statutory Reserve Rate plus, without duplication, (ii) in the case of Loans by a
Lender from its office or branch in the United Kingdom, the Mandatory Cost.




          “Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in
an Agreed Currency (other than euro) for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the sum of (i) (a) the



 









 






LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate plus,
without duplication, (ii) in the case of Loans by a Lender from its office or branch in the United
Kingdom, the Mandatory Cost.




          “Administrative Agent” means JPMorgan Chase Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder, or any successor administrative agent.




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




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




          “Agreed Currencies” means (a) Dollars, (b) euro, (c) Sterling, (d) Yen and (e) such
other currencies as are acceptable to each Revolving Lender and the Administrative Agent.




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.




          “Applicable Percentage” means, with respect to any Lender, (a) with respect to
Revolving Loans, LC Exposure or Swingline Loans, a percentage equal to a fraction the numerator of
which is such Lender’s Revolving Commitment and the denominator of which is the aggregate Revolving
Commitment of all Revolving Lenders (if the Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon such Lender’s share of the aggregate
Revolving Credit Exposures at that time) and (b) with respect to the Term Loans of any Class, a
percentage equal to a fraction the numerator of which is such Lender’s outstanding principal amount
of the Term Loans of such Class and the denominator of which is the aggregate outstanding amount of
the Term Loans of such Class.




          “Applicable Rate” shall be as set forth in Schedule 1.01A hereto.




          “Approved Bank” shall have the meaning assigned to such term in the definition of
“Cash Equivalents”.




          “Approved Fund” has the meaning assigned to such term in Section 9.04(b).




          “Approximate Equivalent Amount” of any currency with respect to any amount of Dollars
shall mean the Equivalent Amount of such currency with respect to such amount of Dollars on or as
of such date, rounded up to the nearest amount of such currency as determined by the Administrative
Agent from time to time.




-2-









 








          “Arrangers” means Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Citigroup Global Markets Inc.




          “Asset Sale” means any Disposition of Property or series of related Dispositions of
Property pursuant to clauses (j), (k) or (m) of Section 6.11 which yields net cash proceeds to the
Company or any of its Subsidiaries in excess of $35,000,000 in the aggregate for any such
Disposition or series of related Dispositions.




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




          “Attributable Receivables Indebtedness” at any time shall mean the principal amount of
Indebtedness which (i) if a Permitted Receivables Facility is structured as a secured lending
agreement, would constitute the principal amount of such Indebtedness or (ii) if a Permitted
Receivables Facility is structured as a purchase agreement, would be outstanding at such time under
the Permitted Receivables Facility if the same were structured as a secured lending agreement
rather than a purchase agreement.




          “Augmenting Lender” has the meaning assigned to such term in Section 2.20.




          “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Revolving Credit Maturity Date and the date of termination of the
Revolving Commitments in accordance with the provisions of this Agreement.




          “Available Amount” shall mean, at any time (the “Reference Time”), an amount
equal to:




          (a) the sum, without duplication, of:





               (i) an amount (if positive) equal to the cumulative amount of Excess Cash Flow for each
fiscal year of the Company (commencing with the Company’s fiscal year ending March 31, 2009)
ending prior to the Reference Time for which financial statements have been delivered
pursuant to Section 5.01(a) that has not been applied (and is not required to be applied) to
prepay Loans pursuant to Section 2.11(b), plus




               (ii) (A) the excess of (x) the amount of any cash or Cash Equivalents received by the
Company (other than from a Subsidiary) from and including the Business Day immediately
following the Effective Date through and including the Reference Time from the issuance and
sale of its Qualified Equity Interests except to the extent applied pursuant to Section
6.06(a)(vi) over (y) $1,500,000,000 minus the amount of Specified Indebtedness prepaid
pursuant to Section 6.06(a)(vi), and (B) the amount by which outstanding Funded Debt of the
Company and its Subsidiaries on a consolidated basis was reduced as a result of the
conversion of such Funded Debt into Qualified Equity Interests, plus



-3-









 






               (iii) the amount of any distribution in cash or Cash Equivalents received by the
Company or any Subsidiary or received by the Company or any Subsidiary upon any Disposition,
in each case, in respect of any Investment made by such Person in reliance on Section
6.05(l) (not to exceed the original amount of such Investment), minus



          (b) the sum, without duplication, of:





               (i) the aggregate amount of Restricted Payments made pursuant to Section 6.04(g)(y)
prior to the Reference Time; plus




               (ii) the aggregate amount of Investments made in reliance on Section 6.05(l) prior to
the Reference Time; plus




               (iii) the aggregate amount of prepayments of Specified Indebtedness made in reliance on
Section 6.06(a)(iv)(B) prior to the Reference Time.



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




          “Borrower” means the Company and/or the Euro Borrower, as the context may require.




          “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in
effect, (b) Term Loans of a single Class made on the same date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect or (c) a Swingline Loan.




          “Borrowing Request” means a request by any Borrower for a Revolving Borrowing in
accordance with Section 2.03 or a request by any Borrower for a Term Borrowing pursuant to a
written request in form reasonably satisfactory to the Administrative Agent.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurocurrency Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Agreed Currencies in the
London interbank market or the principal financial center of the country in which payment or
purchase of such Agreed Currency can be made (and, if the Borrowings or LC Disbursements which are
the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in
euro, the term “Business Day” shall also exclude any day on which the TARGET payment system is not
open for the settlement of payments in euro).




          “CAM” means the mechanism for the allocation and exchange of interests in Loans and
other Credit Extensions under this Agreement and collections thereunder established in Article VII.




-4-









 








          “CAM Exchange” means the exchange of the Lenders’ interests on the CAM Exchange Date
provided for in Article VII.




          “CAM Exchange Date” means the earliest to occur of (x) the date on which any Event of
Default referred to in clause (h) or (i) of Article VII shall occur with respect to the Company and
(y) the date on which the Loans are accelerated pursuant to Article VII.




          “CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the aggregate Dollar Amount of the Designated Obligations owed to
such Lender (whether or not at the time due and payable) immediately prior to the CAM Exchange Date
and (b) the denominator shall be the aggregate Dollar Amount of the Designated Obligations owed to
all the Lenders (whether or not at the time due and payable) on the CAM Exchange Date and
immediately prior to the CAM Exchange.




          “Capital Expenditures” means, for any period, the additions to property, plant and
equipment and other capital expenditures of the Company and its consolidated Subsidiaries that are
(or are required to be) set forth in a consolidated statement of cash flows of the Company for such
period prepared in accordance with GAAP.




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




          “Captive Insurance Subsidiary” means American Triumvirate Insurance Company, a Vermont
corporation or any successor thereto, so long as such Subsidiary is maintained as a special purpose
self insurance subsidiary.




          “Cash Equivalents” means





     (1) any evidence of Indebtedness issued or directly and fully guaranteed or insured by
the government or any agency or instrumentality of (i) the United States or (ii) any member
nation of the European Union;




     (2) time deposits, certificates of deposit, and bank notes of any financial institution
that (i) is a Lender or (ii) is a member of the Federal Reserve System (or organized in any
foreign country recognized by the United States) and whose senior unsecured debt is rated at
least A-2, P-2, or F-2, short-term, or A or A2, long-term, by Moody’s, S&P or Fitch (any
such bank in the foregoing clause (i) or (ii) being an “Approved Bank”). Issues with only
one short-term credit rating must have a minimum credit rating of A-1, P-1 or F 1;




     (3) municipal securities, including auction rate securities (“ARS“s) and variable rate
demand notes (“VRDN“s) and including securities issued or unconditionally



-5-









 







guaranteed by any foreign government, in each case having a minimum of a long-term
credit rating of A2 or A, or equivalent, using the lowest credit rating by Moody’s, S&P, or
Fitch (or any equivalent) or with a short-term credit rating of A-1/P-2 or A-2/P-1, or
equivalent using the lowest credit rating by Moody’s, S&P, or Fitch (or any equivalent).
Issues with only one short-term credit rating must have a minimum credit rating of A-1, P-1,
F1 or the equivalent;




     (4) commercial paper, including asset-backed commercial paper, and floating or fixed
rate notes issued by an Approved Bank or a corporation or special purpose vehicle (other
than an Affiliate or Subsidiary of the Borrower) organized and existing under the laws of
the United States of America, any state thereof or the District of Columbia (or any foreign
country recognized by the United States) and rated at least A-2 by S&P and at least P-2 by
Moody’s;




     (5) asset-backed securities rated AAA by Moody’s, S&P, or Fitch, with weighted average
lives of 3 years or less (measured to the next maturity date);




     (6) repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed or insured by the government or any
agency or instrumentality of (i) the United States or (ii) any member nation of the European
Union maturing within 365 days from the date of acquisition;




     (7) money market funds which invest substantially all of their assets in assets
described in the preceding clauses (1) through (6); and




     (8) instruments equivalent to those referred to in clauses (1) through (7) above
denominated in any Foreign Currency or any other foreign currency comparable in credit
quality and tenor to those referred to above and customarily used by corporations for cash
management purposes in any jurisdiction outside the United States to the extent reasonably
required in connection with any business conducted by any Subsidiary organized in such
jurisdiction;


provided, that except in the case of clauses (5) and (6) above, the maximum maturity date
(or, in the case of VRDNs remaining time to the next put date or, in the case of ARSs to the next
reset or auction date) of individual securities or deposits will be 3 years or less at the time of
purchase or deposit.




          “Cash Management Bank” means any Person that was a Lender or an Affiliate of a Lender
(x) on the Effective Date or (y) at the time the Company or any Subsidiary initially incurred any
Cash Management Obligation to such Person.




          “Cash Management Obligations” means obligations owed by the Company or any Subsidiary
to any Lender or any Affiliate of a Lender in respect of (1) any overdraft and related liabilities
arising from treasury, depository and cash management services or any automated clearing house
transfers of funds and (2) the Company’s or any Subsidiary’s participation in commercial (or
purchasing) card programs at the Lender or any Affiliate (“card obligations”).




-6-









 








          “Casualty Event” means any event that gives rise to the receipt by the Company or any
Subsidiary of any insurance proceeds or condemnation awards in respect of any Property in excess of
$35,000,000.




          “Change in Control” means (a) the acquisition of beneficial ownership, directly or
indirectly, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and
the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of
Equity Interests representing more than 35% of the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests of the Company; (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Company by Persons who were
neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so
nominated; or (c) a Specified Change in Control.




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




          “Charges” shall have the meaning assigned to such term in Section 9.14.




          “Class” when used in reference to (x) any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans, U.S. Tranche A Term Loans, U.S.
Tranche B Term Loans, Euro Term Loans, Incremental Term Loans of any series or Swingline Loans and
(y) when used with respect to any Commitment, refers to whether such Commitment is a U.S. Tranche A
Term Loan Commitment, U.S. Tranche B Term Loan Commitment, Euro Term Loan Commitment or Revolving
Commitment.




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




          “Co-Documentation Agent” means each of LaSalle Bank, National Association and The Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, in its capacity as co-documentation agent for the
credit facility evidenced by this Agreement.




          “Collateral” means all the “Collateral” as defined in any Collateral Document and all
Mortgaged Properties (or any equivalent term).




          “Collateral Documents” means, collectively the U.S. Guarantee and Security Agreement,
each Foreign Guarantee and Security Agreement, each Mortgage, each security agreement, pledge
agreement or other similar agreement delivered to the Administrative Agent and the Lenders pursuant
to Section 5.09 and each of the other agreements, instruments or documents executed by any Loan
Party that creates or purports to create a Lien in favor of the Administrative Agent for the
benefit of the Secured Parties.




-7-









 








          “Commitment” means a Revolving Commitment, Euro Term Loan Commitment, U.S. Tranche A
Term Loan Commitment or U.S. Tranche B Term Loan Commitment.




          “Company” means Mylan Laboratories Inc., a Pennsylvania corporation.




          “Computation Date” is defined in Section 2.04.




          “Consolidated Cash Interest Expense” means, for any period, the excess of (a) the sum,
without duplication, of (i) the interest expense (including imputed interest expense in respect of
Capital Lease Obligations) of the Company and its Subsidiaries (other than the Captive Insurance
Subsidiary) for such period, determined on a consolidated basis in accordance with GAAP,
plus (ii) any interest accrued during such period in respect of Indebtedness of the Company
or any Subsidiary that is required to be capitalized rather than included in consolidated interest
expense for such period in accordance with GAAP, plus (iii) any cash payments made during
such period in respect of obligations referred to in clause (b)(iii) below that were amortized or
accrued in a previous period, minus (b) the sum of, without duplication, (i) interest
income of the Company and its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, plus (ii) to the extent included in such consolidated interest
expense for such period, noncash amounts attributable to amortization of debt issuance costs,
premium, commissions and other fees and charges associated with Indebtedness of the Company and its
Subsidiaries (other than the Captive Insurance Subsidiary), plus (iii) to the extent
included in such consolidated interest expense for such period, noncash amounts attributable to
amortization of debt discounts or accrued interest payable in kind for such period, plus
(iv) all interest paid or payable with respect to discontinued operations of the Company or any of
its Subsidiaries for such period, plus (v) to the extent included in such consolidated
interest expense for such period, all financing fees incurred in connection with the Transaction or
any Permitted Acquisition; provided that Consolidated Cash Interest Expense shall be
calculated after giving effect to Swap Agreements (including associated costs) to the extent such
net costs are allocable to such period in accordance with GAAP, but excluding unrealized gains and
losses with respect to Swap Agreements. Notwithstanding the foregoing, subject to adjustment in
connection with events occurring after the Effective Date to the extent provided in Section
1.04(b), Consolidated Cash Interest Expense for any Test Period ending prior to October 1, 2008
shall be determined by multiplying (i) the actual Consolidated Cash Interest Expense for the period
from the Closing Date to but excluding the date of determination by (ii) a fraction, the numerator
of which is 365 and the denominator of which is the number of days elapsed in such period.




          “Consolidated EBITDA” means Consolidated Net Income plus, without duplication
and, except in the case of clause (xii), to the extent deducted from revenues in determining
Consolidated Net Income, (i) Consolidated Interest Expense and charges, deferred financing fees and
milestone payments in connection with any investment or series of related investments, losses on
hedging obligations or other derivative instruments entered into for the purpose of hedging
interest rate risk, net of gains on such hedging obligations, and costs of surety bonds in
connection with financing activities, (ii) expense and provision for taxes paid or accrued, (iii)
depreciation, (iv) amortization (including amortization of intangibles, including, but not limited
to goodwill), (v) non-cash charges recorded in respect of purchase accounting or impairment of
goodwill or assets and non-cash exchange, translation or performance losses relating to any for-



-8-









 






eign currency hedging transactions or currency fluctuations, (vi) any other non-cash items
except to the extent representing an accrual for future cash outlays, (vii) any unusual, infrequent
or extraordinary loss or charge (including, without limitation, the amount of any restructuring,
integration, transition, executive severance, facility closing and similar charges accrued during
such period, including any charges to establish accruals and reserves or to make payments
associated with the reassessment or realignment of the business and operations of the Company and
its Subsidiaries, including, without limitation, the sale or closing of facilities, severance, stay
bonuses and curtailments or modifications to pension and post-retirement employee benefit plans,
asset write-downs or asset disposals (including leased facilities), write-downs for purchase and
lease commitments, start-up costs for new facilities, writedowns of excess, obsolete or unbalanced
inventories, relocation costs which are not otherwise capitalized and any related promotional costs
of exiting products or product lines), (viii) non-recurring cash charges in connection with the
litigation described on Schedule 2.03, (ix) without duplication, income of any non-wholly
owned Subsidiaries and deductions attributable to minority interests, (x) any non-cash costs or
expenses incurred by the Company or a Subsidiary pursuant to any management equity plan or stock
plan, (xi) expenses with respect to casualty events, (xii) the amount of net cost savings in
connection with the Acquisition, any Permitted Acquisition or otherwise projected by the Company in
good faith to be realized as a result of specified actions taken prior to the last day of such
period (calculated on a pro forma basis as though such cost savings had been realized since the
first day of such period), net of the amount of actual benefits realized during such period from
such actions, provided that (A) in connection with the Acquisition or any Permitted
Acquisition, such actions have been taken prior to such date of determination and within 24 months
after the Effective Date or within 12 months after the closing date of a Permitted Acquisition, as
the case may be, and (B) no cost savings shall be added pursuant to this clause (xii) to the extent
duplicative of any expenses or charges relating to such cost savings that are included in clause
(vii) above with respect to such period, (xiii) to the extent actually reimbursed, expenses
incurred to the extent covered by indemnification provisions in any agreement in connection with
the Acquisition or any Permitted Acquisition, (xiv) any contingent or deferred payments (including
earn-out payments, non-compete payments and consulting payments but excluding ongoing royalty
payments) made in connection with any Permitted Acquisition, (xv) non-cash charges pursuant to SFAS
158, minus, to the extent included in Consolidated Net Income, the sum of (xvi) any
unusual, infrequent or extraordinary income or gains and (xvii) any other non-cash income (except
to the extent representing an accrual for future cash income), all calculated for the Company and
its Subsidiaries (other than the Captive Insurance Subsidiary) in accordance with GAAP on a
consolidated basis; provided that, to the extent included in Consolidated Net Income, (A)
there shall be excluded in determining Consolidated EBITDA currency translation gains and losses
related to currency remeasurements of Indebtedness (including the net loss or gain resulting from
Swap Agreements for currency exchange risk) and (B) there shall be excluded in determining
Consolidated EBITDA for any period any adjustments resulting from the application of SFAS 133.
Notwithstanding the foregoing, subject to adjustment in connection with events occurring after the
Effective Date to the extent contemplated by Section 1.04(b), Consolidated EBITDA shall be deemed
to be $359,800,000, $290,800,000 and $366,600,000 for the fiscal quarters ended December 31, 2006,
March 31, 2007 and June 30, 2007, respectively.




-9-









 








          “Consolidated Interest Coverage Ratio” means, for any Test Period, the ratio of (x)
Consolidated EBITDA for such Test Period to (y) Consolidated Cash Interest Expense for such Test
Period.




          “Consolidated Interest Expense” means, with reference to any period, the interest
expense whether or not paid in cash (including, without limitation, interest expense under Capital
Lease Obligations that is treated as interest in accordance with GAAP) of the Company and its
Subsidiaries (other than the Captive Insurance Subsidiary) calculated on a consolidated basis for
such period in accordance with GAAP plus, without duplication: (a) imputed interest
attributable to Capital Lease Obligations of the Company and its Subsidiaries (other than the
Captive Insurance Subsidiary) for such period, (b) commissions, discounts and other fees and
charges owed by the Company or any of its Subsidiaries (other than the Captive Insurance
Subsidiary) with respect to letters of credit securing financial obligations, bankers’ acceptance
financing and receivables financings for such period, (c) amortization or write-off of debt
discount and debt issuance costs, premium, commissions, discounts and other fees and charges
associated with Indebtedness of the Company and its Subsidiaries (other than the Captive Insurance
Subsidiary) for such period, (d) cash contributions to any employee stock ownership plan or similar
trust made by the Company or any of its Subsidiaries to the extent such contributions are used by
such plan or trust to pay interest or fees to any person (other than the Company or a wholly owned
Subsidiary) in connection with Indebtedness incurred by such plan or trust for such period, (e) all
interest paid or payable with respect to discontinued operations of the Company or any of its
Subsidiaries for such period, (f) the interest portion of any deferred payment obligations of the
Company or any of its Subsidiaries (other than the Captive Insurance Subsidiary) for such period,
(g) all interest on any Indebtedness of the Company or any of its Subsidiaries (other than the
Captive Insurance Subsidiary) of the type described in clause (e) or (f) of the definition of
“Indebtedness” for such period and (h) the interest component of all Attributable Receivables
Indebtedness of the Company and its Subsidiaries (other than the Captive Insurance Subsidiary).




          “Consolidated Leverage Ratio” means, for any Test Period, the ratio of (a)
Consolidated Total Indebtedness as of the last day of such Test Period to (b) Consolidated EBITDA
for such Test Period.




          “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis (without duplication) for such period; provided that, in calculating Consolidated Net
Income of the Company and its Subsidiaries for any period, there shall be excluded (a) the income
(or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is
merged into or consolidated with the Company or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Subsidiary of the Company) in which the Company or any of its
Subsidiaries has an ownership interest (including a Permitted Joint Venture), except to the extent
that any such income is actually received by the Company or such Subsidiary in the form of
dividends or similar distributions, (c) the income or deficit of the Captive Insurance Subsidiary,
(d) any fees and expenses incurred during such period, or any amortization thereof for such period,
in connection with the consummation of the Transaction, any Permitted Acquisition, investment,
asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing
transaction or amendment or other modification of any debt instrument (in each case,



-10-









 






including any such transaction consummated prior to the Effective Date and any such
transaction undertaken but not completed) and any charges or non-recurring merger costs incurred
during such period as a result of any such transaction, (e) any income (loss) for such period
attributable to the early extinguishment of Indebtedness and (f) accruals and reserves that are
established within twelve months after the Effective Date that are so required to be established as
a result of the Transaction in accordance with GAAP. There shall be excluded from Consolidated Net
Income for any period (i) any gains or losses resulting from any reappraisal, revaluation or
write-up or write-down of assets and (ii) the purchase accounting effects of in process research
and development expenses and adjustments to property, inventory and equipment, software and other
intangible assets and deferred revenue and deferred expenses in component amounts required or
permitted by GAAP and related authoritative pronouncements (including the effects of such
adjustments pushed down to the Company and the Subsidiaries), as a result of the Transaction, any
acquisition consummated prior to the Effective Date, any Permitted Acquisitions, or the
amortization or write-off of any amounts thereof.




          “Consolidated Senior Indebtedness” means, as of any date of determination, the amount
of Consolidated Total Indebtedness secured by a Lien on any Property of any Credit Party as of such
date.




          “Consolidated Senior Leverage Ratio” means, for any Test Period, the ratio of (a)
Consolidated Senior Indebtedness as of the last day of such Test Period to (b) Consolidated EBITDA
for such Test Period.




          “Consolidated Subsidiaries” means Subsidiaries and Permitted Joint Ventures that would
be consolidated with the Company in accordance with GAAP.




          “Consolidated Total Assets” means, as of the date of any determination thereof, total
assets of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis as of such date.




          “Consolidated Total Indebtedness” means at any time the sum, without duplication, of
(i) the aggregate principal amount of Indebtedness of the Company and its Subsidiaries (other than
the Captive Insurance Subsidiary) outstanding as of such time calculated on a consolidated basis in
accordance with GAAP required to be reflected as “indebtedness” on a consolidated balance sheet of
the Company in accordance with GAAP (other than Indebtedness described in clause (h) or (i) of the
definition of “Indebtedness” (other than in respect of drawings thereunder to the extent not
reimbursed within two Business Days after the date of such drawing)) plus (ii) the
principal amount of any obligations of any Person (other than the Company or any Subsidiary) of the
type described in the foregoing clause (i) that are Guaranteed by the Company or any Subsidiary
(whether or not reflected on a consolidated balance sheet of the Company).




          “Consolidated Working Capital” means, at any date, the excess of (a) the sum of all
amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet
of the Company at such date, over (b) the sum of all amounts that would, in conformity with GAAP,
be set forth opposite the caption “total current liabilities” (or any like caption) on a



-11-









 






consolidated balance sheet of the Company on such date, excluding the current portion of any
Funded Debt. There shall also be excluded from Consolidated Working Capital to the extent
otherwise included therein (i) the current portion of current and deferred income tax assets and
the current portion of current and deferred income taxes, (ii) all Indebtedness consisting of Loans
and LC Exposure, (iii) the current portion of interest, (iv) the current portion of deferred
revenue, (v) any gains or losses resulting from any reappraisal, revaluation or write-up or
write-down of assets and (vi) the purchase accounting effects of in process research and
development expenses and adjustments to property, inventory and equipment, software and other
intangible assets and deferred revenue and deferred expenses in component amounts required or
permitted by GAAP and related authoritative pronouncements (including the effects of such
adjustments pushed down to the Company and the Subsidiaries), as a result of the Transaction, any
acquisition consummated prior to the Effective Date, any Permitted Acquisitions, or the
amortization or write-off of any amounts thereof.



          “Contract Consideration” shall have the meaning assigned to such term in the
definition of “Excess Cash Flow”.



          “Control” means, with respect to any Person, the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person, whether by contract or
otherwise.



          “Country Risk Event” means:





     (i) any law, action or failure to act by any Governmental Authority in any Borrower’s
or Letter of Credit beneficiary’s country which has the effect of:




     (a) changing the obligations under the relevant Letter of Credit, the Credit
Agreement or any of the other Loan Documents as originally agreed or otherwise
creating any additional material liability, cost or expense to the relevant Issuing
Bank, any of the Lenders or the Administrative Agent,




     (b) changing the ownership or control by such Borrower or Letter of Credit
beneficiary of its business, or




     (c) preventing or restricting the conversion into or transfer of the applicable
Agreed Currency;




     (ii) force majeure; or




     (iii) any similar event


which, in relation to (i), (ii) and (iii), directly or indirectly, prevents or restricts the
payment or transfer of any amounts owing under the relevant Letter of Credit in the applicable
Agreed Currency into an account designated by the Administrative Agent or the relevant Issuing Bank
and freely available to the Administrative Agent or the relevant Issuing Bank.




-12-









 








          “Co-Syndication Agent” means each of Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Citibank, N.A. in its capacity as syndication agent for the credit facility
evidenced by this Agreement.




          “Credit Event” means a Borrowing, an LC Disbursement or any of the foregoing.




          “Credit Exposure” means, as to any Lender at any time, the sum of (a) such Lender’s
Revolving Credit Exposure at such time, plus (b) an amount equal to the aggregate Dollar
Amount of its Term Loans outstanding at such time.




          “Credit Extension” means each of the following: (a) a Borrowing and (b) an LC
Disbursement.




          “Declined Proceeds” shall have the meaning assigned to such term in Section 2.11(b).




          “Default” means any event or condition, which constitutes an Event of Default or,
except in the case of a Specified Target Default prior to the 90th day following the Effective
Date, which upon notice, lapse of time or both would, unless cured or waived, become an Event of
Default.




          “Defaulting Lender” means any Lender that (a) has failed to fund any portion of any
Class of the Loans, participations in the LC Exposure or participations in Swingline Loans required
to be funded by it hereunder within one (1) Business Day of the date required to be funded by it
hereunder, unless subsequently cured, (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 (1)
Business Day of the date when due, unless subsequently cured, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.




          “Designated Obligations” means all obligations of the Borrowers with respect to (a)
principal of and interest on the Loans, (b) unreimbursed LC Disbursements and interest thereon and
(c) accrued and unpaid fees under the Loan Documents.




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




          “Disposition” means, with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof; and the terms
“Dispose” and “Disposed of” shall have correlative meanings.




          “Disqualified Equity Interests” means any Equity Interest which, by its terms (or by
the terms of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control, public equity offering or asset
sale so long as any rights of the holders thereof upon the occurrence of a change of control,
public equity offering or asset sale event shall be subject to the prior repayment in full of the
Loans and all



-13-









 






other Obligations that are accrued and payable and the termination of the Commitments and the
expiration, cancellation, termination or cash collateralization of any Letters of Credit in
accordance with the terms hereof), (b) is redeemable at the option of the holder thereof (other
than solely for Qualified Equity Interests and except as permitted in clause (a) above), in whole
or in part, (c) requires the scheduled payments of dividends in cash (for this purpose, dividends
shall not be considered required if the issuer has the option to permit them to accrue, cumulate,
accrete or increase in liquidation preference or if the Borrower has the option to pay such
dividends solely in Qualified Equity Interests), or (d) is or becomes convertible into or
exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified
Equity Interests, in each case, prior to the date that is 91 days after the Term Loan B Maturity
Date.




          “Dollar Amount” of any currency at any date shall mean (i) the amount of such currency
if such currency is Dollars or (ii) the equivalent in such currency of Dollars if such currency is
a Foreign Currency, determined by the Administrative Agent in accordance with the definition of
Exchange Rate, on or as of the most recent Computation Date provided for in Section 2.04.




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




          “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction
located in the United States of America.




          “ECF Percentage” means 50%; provided that with respect to each fiscal year of
the Company, the ECF Percentage shall be 25% in respect of such fiscal year if the Consolidated
Leverage Ratio as of the last day of such fiscal year is equal to or less than 4.5 to 1.0 but
greater than 3.5 to 1.0; and provided further that the ECF Percentage shall be 0%
in respect of such fiscal year if the Consolidated Leverage Ratio as of the last day of such fiscal
year is equal to or less than 3.5 to 1.0.




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




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, imposing liability or standards of conduct concerning protection of
the environment, preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or the effect of Hazardous Materials or the
environment on health and safety matters.




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




-14-









 








          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.




          “Equivalent Amount” of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars, determined by the
Administrative Agent in accordance with the definition of Exchange Rate, on the date on or as of
which such amount is to be determined.




          “Equivalent Percentage” means, with respect to any specified amount expressed in
Dollars, the percentage obtained by dividing (i) such specified Dollar amount by (ii) the amount
shown as “Total assets” as of December 31, 2007 in the financial statements delivered by the
Company pursuant to Section 5.01.




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




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




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




          “EU” means the European Union.




          “EURIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in euro
for any Interest Period, the rate appearing on Page 248 of the Telerate screen (it being understood
that this rate is the euro interbank offered rate sponsored by the Banking Federation of the
European Union and the Financial Markets Association) (or on any successor or



-15-









 






substitute page of such service, or any successor to or substitute for such service providing
rate quotations comparable to those currently provided on such page of such service, as determined
by the Administrative Agent from time to time for purposes of providing quotations of interest
rates applicable to deposits in euro in the London interbank market) at approximately 11:00 a.m.,
Local Time, two (2) Business Days prior to the commencement of such Interest Period, as the rate
for deposits in euro with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “EURIBO Rate” with respect to such
Eurocurrency Borrowing for such Interest Period shall be the rate at which deposits in euro in an
Equivalent Amount of $5,000,000 and for a maturity comparable to such Interest Period are offered
by the principal London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., Local Time, two (2) Business Days prior to the
commencement of such Interest Period.




          “euro” and/or “EUR” means the single currency of the participating member
states of the EU.




          “Euro Borrower” means Mylan Luxembourg 5 S.a r.l.




          “Euro Term Lender” means, as of any date of determination each Lender having a Euro
Term Loan Commitment or that holds a Euro Term Loan.




          “Euro Term Loan” has the meaning assigned to such term in Section 2.01(c).




          “Euro Term Loan Commitment” means, with respect to each Lender, the commitment, if
any, of such Lender to make a Euro Term Loan pursuant to Section 2.01(c), as such commitment may be
(a) reduced from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to
Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender’s Euro Term Loan Commitment is
set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such
Lender shall have assumed a Euro Term Loan Commitment, as applicable. The initial aggregate amount
of the Lenders’ Euro Term Loan Commitments is EUR1,130,702,095.33.




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




          “Eurocurrency Payment Office” of the Administrative Agent shall mean, for each of the
Agreed Currencies which is a Foreign Currency, the office, branch, affiliate or correspondent bank
of the Administrative Agent for such currency as specified from time to time by the Administrative
Agent to the Company and each Lender.




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




          “Excess Cash Flow” means, for any period, an amount equal to the excess, if any, of:




-16-









 








          (a) the sum, without duplication, of:





     (i) Consolidated Net Income for such period,




     (ii) an amount equal to the amount of all non-cash charges (including
depreciation and amortization) to the extent deducted in arriving at such
Consolidated Net Income,




     (iii) an amount equal to the aggregate net non-cash loss on Dispositions by the
Company and the Subsidiaries during such period to the extent deducted in arriving
at such Consolidated Net Income, and




     (iv) decreases in Consolidated Working Capital for such period;



          minus




          (b) the sum, without duplication, of:





     (i) an amount equal to the amount of all non-cash credits included in arriving
at such Consolidated Net Income and cash charges included in clauses (d) and (e) of
the definition of “Consolidated Net Income”,




     (ii) an amount equal to the aggregate net non-cash gain on Dispositions by the
Company and the Subsidiaries during such period to the extent included in arriving
at such Consolidated Net Income,




     (iii) the amount of Capital Expenditures made in cash during such period except
to the extent that such Capital Expenditures were financed with the proceeds of any
issuance or sale of Equity Interests or with the proceeds of any Indebtedness (other
than Revolving Loans) of the Company or the Subsidiaries, or, to the extent not
otherwise included in Consolidated Net Income, with the proceeds of any Disposition
or Casualty Event with respect to Property of the Company or the Subsidiaries,




     (iv) the aggregate amount of all principal payments or prepayments of
Indebtedness of the Company and the Subsidiaries (including (A) the principal
component of payments in respect of Capital Lease Obligations, (B) the amount of any
repayment of Term Loans pursuant to Section 2.10(b) and (C) the amount of any
mandatory prepayment of Term Loans pursuant to Section 2.11(b)(ii) to the extent
required due to an Asset Sale or Casualty Event that resulted in an increase to
Consolidated Net Income and not in excess of the amount of such increase, but
excluding (X) all other prepayments of Term Loans and (Y) all prepayments of
Revolving Loans and Swingline Loans) together with any premium, make-whole or
penalty payments actually paid in cash by the Company and the Subsidiaries during
such period that are required to be made in connection with any prepayment of
Indebtedness, made during such period (other than in respect of any revolving credit
facility to the extent there is not an equivalent



-17-









 







permanent reduction in commitments thereunder), except to the extent that such
payments or prepayments were financed with the proceeds of any issuance or sale of
Equity Interests of the Company, with the proceeds of any other Indebtedness of the
Company or the Subsidiaries, or, to the extent not otherwise included in
Consolidated Net Income, with the proceeds of any Disposition of Property of or any
Casualty Event with respect to Property of the Company or the Subsidiaries,




     (v) increases in Consolidated Working Capital for such period,




     (vi) cash payments by the Company and the Subsidiaries (other than the Captive
Insurance Subsidiary) during such period in respect of long-term liabilities of the
Company and the Subsidiaries other than Indebtedness,




     (vii) without duplication of amounts deducted pursuant to clause (ix) below in
prior fiscal years, the consolidated amount of Investments made during such period
pursuant to clauses (b), (c) (but only to the extent of any consideration paid to
any Person that is not a Subsidiary), (d)(ii), (f), (g) (to the extent of any
upfront fees or cash payments made thereunder), (h), (k), (m), (p), (q) or (t) of
Section 6.05, except to the extent that such Investments were financed with the
proceeds of any issuance or sale of Equity Interests of the Company, with the
proceeds of any Indebtedness of the Company or the Subsidiaries, or, to the extent
not otherwise included in Consolidated Net Income, with the proceeds of any
Disposition of Property of or any Casualty Event with respect to Property of the
Company or the Subsidiaries,




     (viii) the amount (without duplication) of Restricted Payments during such
period pursuant to clauses (c), (d), (h)(x) and (i) of Section 6.04, and




     (ix) without duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate consideration required to be paid in cash by the Company or
any of the Subsidiaries pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period relating to
Permitted Acquisitions or Capital Expenditures to be consummated or made during the
fiscal year of the Company following the end of such period, provided that
to the extent the aggregate cash consideration paid for such Permitted Acquisitions
or Capital Expenditures during such fiscal year (other than amounts financed with
the proceeds of any issuance or sale of Equity Interests of the Company, with the
proceeds of any Indebtedness of the Company or the Subsidiaries, or, to the extent
not otherwise included in Consolidated Net Income, with the proceeds of any
Disposition of Property of or any Casualty Event with respect to Property of the
Company or the Subsidiaries) is less than the Contract Consideration, the amount of
such shortfall shall be added to the calculation of Excess Cash Flow at the end of
such period of four consecutive fiscal quarters.



          “Exchange Notes” has the meaning set forth in the Interim Loan Agreement.




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          “Exchange Rate” means, on any day, with respect to any Foreign Currency, the rate at
which such Foreign Currency may be exchanged into Dollars, as set forth at approximately 11:00
a.m., London time, on such date on the Reuters World Currency Page for such Foreign Currency. In
the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with
respect to such Foreign Currency shall be determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon by the Administrative Agent and the
Company or, in the absence of such agreement, such Exchange Rate shall instead be calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative
Agent for such Foreign Currency on the London market at 11:00 a.m., London time, on such date for
the purchase of Dollars with such Foreign Currency, for delivery two Business Days later;
provided that, if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent, after consultation with the Company, may use any
reasonable method it deems appropriate to determine such rate, and such determination shall be
conclusive absent manifest error.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Company hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which such recipient’s principal
office is located or, in the case of any Lender, in which its applicable lending office is located
and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the
Company under Section 2.19(b)), any withholding tax (other than (x) U.S. withholding tax imposed
with respect to the Euro Term Loan or any other payment by or on account of the Euro Borrower and
(y) Luxembourg withholding tax imposed with respect to any Loan or any other payment by or on
account of any Borrower) that (i) is imposed on amounts payable by or on account of an obligation
of any Borrower to such Foreign Lender to the extent in effect at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), 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 Company with respect to such
withholding tax pursuant to Section 2.17(a) or (ii) is attributable to such Foreign Lender’s
failure to comply with Section 2.17(e) (i.e., failure to deliver a form that it is legally
entitled to deliver).




          “Existing Credit Agreement” means (i) the Credit and Guarantee Agreement, dated as of
March 26, 2007, among Mylan Laboratories Inc. Euro Mylan B.V., the lenders party thereto and
JPMorgan Chase Bank, National Association, as administrative agent and (ii) the Credit Agreement,
dated as of July 24, 2006, by and among the Company, the lenders party thereto and JPMorgan Chase
Bank, National Association as administrative agent.




          “Existing Note Indenture” means the indenture dated as of July 21, 2005, entered into
by the Company and certain of its Subsidiaries in connection with the issuance of $500,000,000
aggregate principal amount of the Company’s senior notes, together with all in-



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struments and other agreements entered into by the Company or such Subsidiaries in connection
therewith.




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




          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Company.




          “Fixed Rate Exchange Notes” has the meaning set forth in Exhibit C to the
Interim Loan Agreement.




          “Foreign Casualty Event” has the meaning assigned to such term in Section 2.11(b).




          “Foreign Collateral” means all property pledged or purported to be pledged pursuant to
the terms of any Foreign Guarantee and Security Agreement.




          “Foreign Currencies” means each Agreed Currency other than Dollars.




          “Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount of
the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at
such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect
of Foreign Currency Letters of Credit that have not yet been reimbursed at such time.




          “Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign
Currency.




          “Foreign Currency Sublimit” means the lesser of (x) the then outstanding amount of
Revolving Commitments and (y) $250,000,000.




          “Foreign Disposition” has the meaning assigned to such term in Section 2.11(b).




          “Foreign Guarantee and Security Agreement” means, collectively as the context
requires, (i) with respect to any Foreign Guarantor, a guarantee agreement in form reasonably
satisfactory to the Administrative Agent, pursuant to which such Foreign Guarantor shall Guarantee
the payment and performance of the Foreign Obligations and (ii) with respect to each Foreign Loan
Party, each security agreement, pledge agreement or other document reasonably requested by the
Administrative Agent in order to secure the Foreign Obligations by the assets of such Foreign Loan
Party to substantially the same extent as the Obligations are required to be





-20-











 




secured by the U.S. Guarantee and Security Agreement and the provisions of Section 5.09,
together with each other supplement thereto executed and delivered pursuant to Section 5.09.




          “Foreign Guarantors” means each Specified Foreign Subsidiary that becomes a party to
the Foreign Guarantee and Security Agreement after the Effective Date pursuant to Section 5.09 or
otherwise.




          “Foreign Holding Company” means any Domestic Subsidiary (i) substantially all of the
assets of which consist of Equity Interests and Indebtedness issued by Foreign Subsidiaries of the
Company and (ii) which has not incurred any Indebtedness for money borrowed from any Person other
than the Company or a Subsidiary, other than Guarantees of Indebtedness of Foreign Subsidiaries.




          “Foreign Jurisdiction Deposit” means a deposit or Guarantee incurred in the ordinary
course of business and required by any Governmental Authority in a foreign jurisdiction as a
condition of doing business in such jurisdiction.




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




          “Foreign Loan Parties” means the Euro Borrower and any Foreign Guarantor.




          “Foreign Obligations” means all Obligations in respect of (w) the Euro Term Loans and
any Revolving Loans made to the Euro Borrower, (x) any fees and expenses relating to the
enforcement of this Agreement or any other Loan Document against any Foreign Loan Party, (y) any
Cash Management Obligations incurred directly by a Foreign Subsidiary and (z) any Secured Hedge
Agreement to which any Foreign Subsidiary is a party.




          “Foreign Secured Parties” means the Administrative Agent, the Euro Term Lenders, the
Revolving Lenders (solely in respect of Foreign Obligations) and the other holders from time to
time of any Foreign Obligations.




          “Foreign Subsidiary” means any direct or indirect Subsidiary of the Company that is
not a Domestic Subsidiary.




          “Funded Debt” means all Indebtedness of the Company and the Subsidiaries for borrowed
money that matures more than one year from the date of its creation or matures within one year from
such date that is renewable or extendable, at the option of such Person, to a date more than one
year from such date or arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from such date, including
Indebtedness in respect of the Loans.




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




-21-









 








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




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other monetary obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such Indebtedness or
other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital
or any other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other monetary obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness or
monetary obligation; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any Guarantee of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation, or portion thereof, in respect of which such
Guarantee is made and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation or
the maximum amount for which such guaranteeing person may be liable are not stated or determinable,
in which case the amount of such Guarantee shall be such guaranteeing person’s maximum reasonably
anticipated liability in respect thereof as determined by the Company in good faith.




          “Guarantors” means the U.S. Guarantors and the Foreign Guarantors.




          “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.




          “Hedge Bank” means any Person that is a Lender or an Affiliate of a Lender (x) on the
Effective Date or (y) at the time it enters into a Secured Hedge Agreement, in its capacity as a
party thereto.




          “Increased Commitments” has the meaning assigned to such term in Section 2.20.




          “Increasing Lender” has the meaning assigned to such term in Section 2.20.




          “Incremental Term Loan” has the meaning assigned to such term in Section 2.20.




-22-









 








          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of property or services
(excluding accounts payable incurred in the ordinary course of business, milestone payments
incurred in connection with any investment or series of related investments, any earn-out
obligation except to the extent such obligation is a liability on the balance sheet of such Person
in accordance with GAAP at the time initially incurred and deferred or equity compensation
arrangements payable to directors, officers or employees), (e) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on Property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, but limited to the fair market value of such
Property (except to the extent otherwise provided in this definition), (f) all Guarantees by such
Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, (j) all obligations of such Person under any Swap Agreement and
(k) all Attributable Receivables Indebtedness. The Indebtedness of any Person shall (i) include
the Indebtedness of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is expressly liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity and pursuant to contractual
arrangements, except to the extent the terms of such Indebtedness provide that such Person is not
liable therefor and (ii) exclude (A) customer deposits and advances and interest payable thereon in
the ordinary course of business in accordance with customary trade terms and other obligations
incurred in the ordinary course of business through credit on an open account basis customarily
extended to such Person and (B) obligations under customary overdraft arrangements with banks
outside the United States incurred in the ordinary course of business to cover working capital
needs.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Indemnitees” has the meaning set forth in Section 9.03(b).




          “Information” has the meaning specified in Section 9.12.




          “Information Memorandum” means the Confidential Information Memorandum dated June 2007
relating to the Company and the Transactions.




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




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




-23-









 







intervals of three months’ duration after the first day of such Interest Period and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.




          “Interest Period” means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months, or any other period as may be agreed to and
is available to all applicable Lenders, thereafter, as the applicable Borrower (or the Company on
behalf of the applicable Borrower) may elect; provided that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurocurrency Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing
that commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




          “Interim Loan Agreement” means that certain Interim Loan Agreement, dated as of the
Effective Date, by and among the U.S. Loan Parties, the lenders from time to time party thereto and
Merrill Lynch Capital Corporation, as administrative agent.




          “Interim Loans” means $2,850,000,000 aggregate principal amount of loans made on the
Effective Date pursuant to the Interim Loan Agreement.




          “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or
debt or other securities of another Person or (b) a loan, advance or capital contribution to,
Guarantee of monetary obligations of, assumption of Indebtedness 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 or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of all or substantially all of the property and
assets or business of another Person or assets constituting a business unit, line of business or
division of such Person. For purposes of Section 6.05,(i) the amount of any Investment shall be
the amount actually invested, without adjustment for subsequent increases or decreases in the value
of such Investment, and (ii) in the event the Company or any Subsidiary (an “Initial Investing
Person”) transfers an amount of cash or other Property (the “Invested Amount”) for
purposes of permitting the Company or one or more other Subsidiaries to ultimately make an
Investment of the Invested Amount in the Company, any Subsidiary or any other Person (the Person in
which such Investment is ultimately made, the “Subject Person”) through a series of
substantially concurrent intermediate transfers of the Invested Amount to the Company or one or
more other Subsidiaries other than the Subject Person (each an “Intermediate Investing
Person”), including through the incurrence or repayment of intercompany Indebtedness, capital
contributions or redemptions of Equity Interests, then, for all purposes of Section 6.05, any
transfers of the Invested Amount to Intermediate Investing Persons in connection therewith shall be
disregarded and such




-24-









 







transaction, taken as a whole, shall be deemed to have been solely an
Investment of the Invested Amount by the Initial Investing Person in the Subject Person and not an
Investment in any Intermediate Investing Person.




          “Issuing Bank” means JPMorgan Chase Bank, National Association, and any other Lender
that becomes an Issuing Bank in accordance with Section 2.06(i), in each case in its capacity as an
issuer of Letters of Credit hereunder, and any successors in such capacity as provided in Section
2.06(i). An Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities.




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




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




          “LC Exposure Sublimit” means $100,000,000.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline
Lender.




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




          “LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in an Agreed
Currency (other than euro) for any Interest Period, the rate appearing on, in the case of Dollars,
Page 3750 of the Dow Jones Market Service and, in the case of any Foreign Currency (other than
euro), the appropriate page of such service which displays British Bankers Association Interest
Settlement Rates for deposits in such Foreign Currency (or, in each case, on any successor or
substitute page of such service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such service, as determined by
the Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in the relevant Agreed Currency in the London interbank market) at
approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such
Interest Period, as the rate for deposits in the relevant Agreed Currency with a maturity
comparable to such Interest Period. In the event that such rate is not available at such time for
any reason, then the “LIBO Rate” with respect to such Eurocurrency Borrowing for




-25-









 







such Interest Period shall be the rate at which deposits in the relevant Agreed Currency in an Equivalent Amount
of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds
in the London interbank market at approximately 11:00 a.m., London time, two (2) Business Days
prior to the commencement of such Interest Period.




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




          “Loan Documents” means this Agreement, the Collateral Documents, any promissory notes
executed and delivered pursuant to Section 2.10(f) and any amendments, waivers, supplements or
other modifications to any of the foregoing.




          “Loan Parties” means, collectively, the U.S. Loan Parties and the Foreign Loan
Parties.




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




          “Local Time” means (i) New York City time in the case of a Loan, Borrowing or LC
Disbursement denominated in Dollars to, or for the account of, the Company and (ii) local time at
the place of the relevant Loan, Borrowing or LC Disbursement (or such earlier local time as is
necessary for the relevant funds to be received and transferred to the Administrative Agent for
same day value on the date the relevant reimbursement obligation is due) in the case of a Loan,
Borrowing or LC Disbursement which is denominated in a Foreign Currency or which is made to, or for
the account of, the Euro Borrower.




          “Luxembourg” means the Grand Duchy of Luxembourg.




          “Mandatory Cost” is described in Schedule 2.02.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
property or financial condition of the Company and the Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any and all other Loan Documents or the rights and
remedies of the Administrative Agent and the Lenders thereunder.




          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Company and its Subsidiaries in an aggregate principal amount exceeding $50,000,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Company or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Company or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.




-26-









 








          “Material Real Property” means, on any date, any real property owned by any Loan Party
with a fair market value as of such date in excess of $15,000,000.




          “Material Subsidiary” means any Subsidiary (or group of Subsidiaries as to which a
specified condition applies) that would be a “significant subsidiary” under Rule 1-02(w) of
Regulation S-X.




          “Maximum Rate” has the meaning assigned to such term in Section 9.14.




          “Mchem Group Companies” means: Xiamen Mchem Pharma Group Limited, Xiamen Mchem
Laboratories Limited, Dafeng Mchem Pharmaceutical Chemical Co., Limited and Mchem Research &
Development Co., Limited.




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




          “Mortgage” means, collectively, the deeds of trust, trust deeds, hypothecs and
mortgages made by the Loan Parties in favor or for the benefit of the Administrative Agent on
behalf of the Lenders substantially in the form of Exhibit I (with such changes as may be
customary to account for local Law matters or as otherwise may be reasonably satisfactory to the
Administrative Agent), and any other mortgages executed and delivered pursuant to Section 5.09.




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




          “Net Cash Proceeds” means (a) with respect to any Asset Sale or any Casualty Event, an
amount equal to (i) the sum of cash and Cash Equivalents received in connection with such Asset
Sale or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so
received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in
respect of such Casualty Event actually received by or paid to or for the account of the Company or
any Subsidiary) less (ii) the sum of (A) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness that is secured by the Property subject to such
Asset Sale or Casualty Event and that is required to be repaid (and is repaid) in connection with
such Asset Sale or Casualty Event (other than Indebtedness under the Loan Documents), (B) the
out-of-pocket expenses (including attorneys’ fees, investment banking fees, accounting fees and
other professional and transactional fees, survey costs, title insurance premiums, and related
search and recording charges, transfer taxes, deed or mortgage recording taxes, other expenses and
brokerage, consultant and other commissions and fees) actually incurred by the Company or such
Subsidiary in connection with such Asset Sale or Casualty Event, (C) taxes paid or reasonably
estimated to be actually payable in connection therewith, (D) any reserve for adjustment in
accordance with GAAP in respect of (x) the sale price of such Property and (y) any liabilities
associated with such Property and retained by the Company or any Subsidiary after such Disposition,
including pension and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with such transaction
and (E) the Company’s reasonable estimate of payments required to be made with respect to unassumed
liabilities relating to the Property involved within one year of





-27-









 







such Asset Sale or Casualty Event;
provided that “Net Cash Proceeds” shall include (i) any cash or Cash Equivalents received
upon the Disposition of any non-cash consideration received by the Company or any Subsidiary in any
such Asset Sale, (ii) an amount equal to any reversal (without
the satisfaction of any applicable liabilities in cash in a corresponding amount) of any
reserve described in clause (C) or (D) above at the time of such reversal and (iii) an amount equal
to any estimated liabilities described in clause (E) above that have not been satisfied in cash
within three hundred and sixty-five (365) days after such Asset Sale or Casualty Event; and (b)
with respect to the incurrence or issuance of any Indebtedness by the Company or any Subsidiary, an
amount equal to (i) the sum of the cash received in connection with such incurrence or issuance
less (ii) the attorneys’ fees, investment banking fees, accountants’ fees, underwriting or other
discounts, commissions, costs and other fees, transfer and similar taxes and other out-of-pocket
expenses actually incurred by the Company or such Subsidiary in connection with such incurrence or
issuance.




          “New Money Credit Event” means with respect to an Issuing Bank, any increase (directly
or indirectly) in such Issuing Bank’s exposure (whether by way of additional credit or banking
facilities or otherwise, including as part of a restructuring) to any Borrower or any Governmental
Authority in any Borrower’s or any applicable Letter of Credit beneficiary’s country occurring by
reason of (i) any law, action or requirement of any Governmental Authority in such Borrower’s or
such Letter of Credit beneficiary’s country, or (ii) any request in respect of external
indebtedness of borrowers in such Borrower’s or such Letter of Credit beneficiary’s country
applicable to banks generally which conduct business with such borrowers, or (iii) any agreement in
relation to clause (i) or (ii), in each case to the extent calculated by reference to the aggregate
Revolving Credit Exposures outstanding prior to such increase.




          “Obligations” means all indebtedness (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) and other monetary obligations of any of the Company and
its Subsidiaries (including the Euro Borrower) to any of the Lenders and the Administrative Agent,
individually or collectively, existing on the Effective Date or arising thereafter (direct or
indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured) arising or incurred under this Agreement or any of the other
Loan Documents or any Secured Hedge Agreement or Cash Management Obligation (including under any of
the Loans made or reimbursement or other monetary obligations incurred or any of the Letters of
Credit or other instruments at any time evidencing any thereof), in each case whether now existing
or hereafter arising, whether all such obligations arise or accrue before or after the commencement
of any bankruptcy, insolvency or receivership proceedings (and whether or not such claims,
interest, costs, expenses or fees are allowed or allowable in any such proceeding);
provided that (i) obligations of the Company or any Subsidiary under any Swap Agreement and
any Cash Management Obligations shall be guaranteed pursuant to the U.S. Guarantee and Security
Agreement and the Foreign Guarantee and Security Agreement, as the case may be, only to the extent
that, and for so long as, the other Obligations are so guaranteed and (ii) any release of
Guarantors or Collateral effected in the manner permitted by this Agreement shall not require the
consent of holders of obligations under Swap Agreements or holders of Cash Management Obligations.




-28-









 








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




          “Overnight Foreign Currency Rate” means, for any amount payable in a Foreign Currency,
the rate of interest per annum as determined by the Administrative Agent at which overnight or
weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three
(3) Business Days, then for such other period of time as the Administrative Agent may elect) for
delivery in immediately available and freely transferable funds would be offered by the
Administrative Agent to major banks in the interbank market upon request of such major banks for
the relevant currency as determined above and in an amount comparable to the unpaid principal
amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions, charges or
withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent
bank in respect of such amount in such relevant currency.




          “Parallel Debt” has the meaning set forth in Article VIII.




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




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




          “Permitted Acquisition” means (i) the purchase or other acquisition of property and
assets or businesses of any Person or of assets constituting a business unit, a line of business or
division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will
be a Subsidiary of the Company (including as a result of a merger or consolidation) or (ii) any
Investment in any Subsidiary (including by a merger or consolidation of existing Subsidiaries);
provided that the following conditions are satisfied to the extent applicable:





     (a) to the extent required by Section 5.09, each applicable Loan Party and any such
newly created or acquired Subsidiary shall have complied with the requirements of Section
5.09, within the times specified therein;




     (b) the aggregate amount of Investments (without duplication for any Investment made
through a series of Investments) (x) made by U.S. Loan Parties in Persons that are not U.S.
Loan Parties prior to any such Investment, and do not become U.S. Loan Parties as a result
of any such Investment and (y) made by Foreign Loan Parties in Persons that are not Loan
Parties prior to any such Investment, and do not become Loan Parties as a result of any such
Investment, in Permitted Acquisitions shall not exceed (except as otherwise permitted by
Section 6.05) $500,000,000;




     (c) the acquired Property, business or Person is in a business permitted under Section
6.12;




     (d) (1) at the time of and immediately after giving effect thereto, no Event of Default
shall have occurred and be continuing and (2) on a Pro Forma Basis, the



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Consolidated
Leverage Ratio as of the last day of the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01(a) or (b) immediately preceding such
purchase or other acquisition is less than or equal to 6.0 to 1.0 and the Company shall be
in Pro Forma Compliance with the covenants set forth in Section 6.09, satisfaction of such
requirements shall be evidenced by a certificate from a Financial
Officer of the Company delivered to the Administrative Agent containing a reasonably
detailed calculation; and




     (e) the Company shall have delivered to the Administrative Agent, on behalf of the
Lenders, no later than five (5) Business Days after the date on which any such purchase or
other acquisition is consummated, a certificate of a Financial Officer, in form and
substance reasonably satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this definition have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other acquisition (or within the time periods
required by Section 5.09).



          “Permitted Encumbrances” means:





     (a) Liens imposed by law for taxes, assessments or other governmental charges that are
not overdue for a period of more than thirty (30) days or are being contested in compliance
with Section 5.04;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’,
workmen’s, suppliers’ and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than sixty (60) days or are
being contested in compliance with Section 5.04;




     (c) (i) Liens, pledges and deposits made in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance and other social security laws
or regulations (including to support letters of credit or bank guarantees) and (ii) Liens,
pledges or deposits in the ordinary course of business securing liability for premiums or
reimbursement or indemnification obligations of (including obligations in respect of letters
of credit or bank guarantees for the benefit of) insurance carriers providing insurance to
the Company or any Subsidiary;




     (d) Liens or deposits to secure the performance of bids, trade contracts, governmental
contracts, tenders, statutory bonds, leases, statutory obligations, surety, stay, customs,
appeal and replevin bonds, performance bonds and other obligations of a like nature
(including those to secure health, safety and environmental obligations), in each case in
the ordinary course of business;




     (e) Liens in respect of judgments, decrees, attachments or awards that do not
constitute an Event of Default under clause (k) of Article VII;




     (f) easements, restrictions (including zoning restrictions), rights-of-way, covenants,
licenses, encroachments, protrusions and similar encumbrances and minor title defects
affecting real property imposed by law or arising in the ordinary course of



-30-









 






business that do
not secure any monetary obligations and do not materially interfere with the ordinary
conduct of business of the Company or any Subsidiary; and




     (g) any interest or title of a lessor, sublessor, licensor or sublicensor under any
lease, sublease, license or sublicense entered into by the Company or any other Subsidiary
in the ordinary course of its business and covering only the assets so leased;


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




          “Permitted Joint Venture” means any Person (i) in which the Company or any of its
Subsidiaries holds Equity Interests that represent less than 80% of the ordinary voting power and
aggregate equity value represented by the issued and outstanding Equity Interests in such Person
and (ii) that is engaged in a business permitted under Section 6.12; provided that the term
“Permitted Joint Venture” shall not include any Person unless the Company has delivered a written
notice to the Administrative Agent stating that such Person shall be a “Permitted Joint Venture”
for purposes of this Agreement.




          “Permitted Receivables Facility” means the receivables facility or facilities created
under the Permitted Receivables Facility Documents, providing for the sale or pledge by the Company
and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby
providing financing to the Company and the Receivables Sellers) to the Receivables Entity (either
directly or through another Receivables Seller), which in turn shall sell or pledge interests in
the respective Permitted Receivables Facility Assets to third-party lenders or investors pursuant
to the Permitted Receivables Facility Documents (with the Receivables Entity permitted to issue
investor certificates, purchased interest certificates or other similar documentation evidencing
interests in the Permitted Receivables Facility Assets) in return for the cash used by the
Receivables Entity to purchase the Permitted Receivables Facility Assets from the Company and/or
the respective Receivables Sellers, in each case as more fully set forth in the Permitted
Receivables Facility Documents.




          “Permitted Receivables Facility Assets” means (i) Receivables (whether now existing or
arising in the future) of the Company and its Subsidiaries which are transferred or pledged to the
Receivables Entity pursuant to the Permitted Receivables Facility and any related Permitted
Receivables Related Assets which are also so transferred or pledged to the Receivables Entity and
all proceeds thereof and (ii) loans to the Company and its Subsidiaries secured by Receivables
(whether now existing or arising in the future) of the Company and its Subsidiaries which are made
pursuant to the Permitted Receivables Facility.




          “Permitted Receivables Facility Documents” means each of the documents and agreements
entered into in connection with the Permitted Receivables Facility, including all documents and
agreements relating to the issuance, funding and/or purchase of certificates and purchased
interests, all of which documents and agreements shall be in form and substance reasonably
customary for transactions of this type, in each case as such documents and agreements may be
amended, modified, supplemented, refinanced or replaced from time to time so long as (in the good
faith determination of the Company) either (i) the terms as so amended, modified, supplemented,
refinanced or replaced are reasonably customary for transactions of this type or




-31-









 







(ii)(x) any such
amendments, modifications, supplements, refinancings or replacements do not impose any conditions
or requirements on the Company or any of its Subsidiaries that are more restrictive in any material
respect than those in existence immediately prior to any such amendment, modification, supplement,
refinancing or replacement, and (y) any such amendments, modifications, supplements, refinancings
or replacements are not adverse in any material respect to the interests of the Lenders.




          “Permitted Receivables Related Assets” means any other assets that are customarily
transferred or in respect of which security interests are customarily granted in connection with
asset securitization transactions involving receivables similar to Receivables and any collections
or proceeds of any of the foregoing.




          “Permitted Refinancing Indebtedness” means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person;
provided that (a) the principal amount (or accreted value, if applicable) thereof does not
exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified,
refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and
premium thereon plus other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such modification, refinancing, refunding, renewal or extension, (b) other than
with respect to Permitted Refinancing Indebtedness in respect of Indebtedness permitted pursuant to
Section 6.01(e), such modification, refinancing, refunding, renewal or extension has a final
maturity date equal to or later than the earlier of (x) the final maturity date of the Indebtedness
so modified, refinanced, refunded, renewed or extended and (y) the date which is 91 days after the
Term Loan B Maturity Date, (c) other than with respect to Permitted Refinancing Indebtedness in
respect of Indebtedness permitted pursuant to Section 6.01(e), such modification, refinancing,
refunding, renewal or extension has a Weighted Average Life to Maturity equal to or greater than
the remaining Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced,
refunded, renewed or extended and (d) to the extent such Indebtedness being modified, refinanced,
refunded, renewed or extended is subordinated in right of payment to the Obligations, such
modification, refinancing, refunding, renewal or extension is subordinated in right of payment to
the Obligations on terms at least as favorable to the Lenders (in the good faith determination of
the Company) as those contained in the documentation governing the Indebtedness being modified,
refinanced, refunded, renewed or extended.




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




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




          “Post-Acquisition Period” means, with respect to any Permitted Acquisition, the period
beginning on the date such Permitted Acquisition is consummated and ending on the one-year
anniversary of the date on which such Permitted Acquisition is consummated.




-32-









 








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




          “Pro Forma Adjustment” means, for any applicable period of measurement that includes
all or any part of a fiscal quarter included in the Post-Acquisition Period, with respect to
the Consolidated EBITDA of the applicable Acquired Entity or Business or the Consolidated
EBITDA of the Company, the pro forma increase or decrease in such Consolidated EBITDA, projected by
the Company in good faith as a result of (a) actions that have been taken during such
Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually
supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period,
in each case in connection with the combination of the operations of such Acquired Entity or
Business with the operations of the Company and its Subsidiaries and, in each case, which are
expected to have a continuing impact on the consolidated financial results of the Company,
calculated assuming that such actions had been taken on, or such costs had been incurred since, the
first day of such period; provided that any such pro forma increase or decrease to such
Consolidated EBITDA shall be without duplication for cost savings or additional costs already
included in such Consolidated EBITDA for such period of measurement.




          “Pro Forma Basis” means with respect to compliance with any test covenant hereunder,
that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all
Specified Transactions and the following transactions in connection therewith shall be deemed to
have occurred as of the first day of the applicable period of measurement in such test or covenant:
(a) income statement items (whether positive or negative) attributable to the Property or Person
subject to such Specified Transaction, (i) in the case of a Disposition of all or substantially all
Equity Interests in any Subsidiary of the Company owned by the Company or any of its Subsidiaries
or any division, product line, or facility used for operations of the Company or any of its
Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment
described in the definition of “Specified Transaction”, shall be included, (b) any retirement of
Indebtedness and (c) any Indebtedness incurred or assumed by the Company or any of the Subsidiaries
in connection therewith and if such Indebtedness has a floating or formula rate, shall have an
implied rate of interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination; provided that, without limiting the application of the Pro
Forma Adjustment pursuant to clause (A) above (but without duplication thereof), the foregoing pro
forma adjustments may be applied to any such test or covenant solely to the extent that such
adjustments are (x) consistent with the definition of Consolidated EBITDA and give effect to events
(including operating expense reductions) that are in the good faith determination of the Company
reasonably identifiable and factually supportable and (y) expected to have a continuing impact on
the consolidated financial results of the Company.




          “Property” means any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including, without limitation,
Equity Interests.




-33-









 








          “Qualified Equity Interests” means Equity Interests of the Company other than
Disqualified Equity Interests.




          “Receivables” means all accounts receivable (including, without limitation, all rights
to payment created by or arising from sales of goods, leases of goods or the rendition of services
rendered no matter how evidenced whether or not earned by performance).




          “Receivables Entity” means a wholly owned Subsidiary of the Company which engages in
no activities other than in connection with the financing of accounts receivable of the Receivables
Sellers and which is designated (as provided below) as the “Receivables Entity” (a) no portion of
the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by
the Company or any other Subsidiary of the Company (excluding guarantees of obligations (other than
the principal of, and interest on, Indebtedness)) pursuant to Standard Securitization Undertakings,
(ii) is recourse to or obligates the Company or any other Subsidiary of the Company in any way
(other than pursuant to Standard Securitization Undertakings) or (iii) subjects any property or
asset of the Company or any other Subsidiary of the Company, directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (b) with which neither the Company nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding (other than pursuant to the Permitted Receivables Facility
Documents (including with respect to fees payable in the ordinary course of business in connection
with the servicing of accounts receivable and related assets)) on terms less favorable to the
Company or such Subsidiary than those that might be obtained at the time from persons that are not
Affiliates of the Company, and (c) to which neither the Company nor any other Subsidiary of the
Company has any obligation to maintain or preserve such entity’s financial condition or cause such
entity to achieve certain levels of operating results. Any such designation shall be evidenced to
the Administrative Agent by filing with the Administrative Agent an officer’s certificate of the
Company certifying that, to the best of such officer’s knowledge and belief after consultation with
counsel, such designation complied with the foregoing conditions.




          “Receivables Sellers” means the Company and those Subsidiaries (other than Receivables
Entities) that are from time to time party to the Permitted Receivables Facility Documents.




          “Refinanced Term Loans” has the meaning assigned to such term in Section 9.02.




          “Refinancing Preferred Stock” means Qualified Equity Interests, issued in a public or
private offering which have been designated by a Financial Officer in an officer’s certificate as
“Refinancing Preferred Stock” and the net cash proceeds of which are applied within 45 days of the
receipt thereof to the prepayment of outstanding Interim Loans or the redemption or repurchase of
Exchange Notes.




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




          “Regulation S-X” means Regulation S-X under the Securities Act of 1933, as amended.




-34-









 








          “Rejection Notice” has the meaning assigned to such term in Section 2.11(b).




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




          “Replacement Term Loans” has the meaning assigned to such term in Section 9.02.




          “Required Lenders” means, at any time, Lenders having Credit Exposure and unused
Commitments representing more than 50% of the sum of the total Credit Exposure and unused
Commitments at such time.




          “Required Revolving Lenders” means, at any time, Lenders having Revolving Credit
Exposures and unused Revolving Commitments representing more than 50% of the sum of the total
Revolving Credit Exposures and unused Revolving Commitments at such time.




          “Restricted Payments” means any dividend or other distribution (whether in cash,
securities or other property (other than Qualified Equity Interests)) with respect to any Equity
Interests in the Company or any Subsidiary, or any payment (whether in cash, securities or other
property (other than Qualified Equity Interests)), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any
such Equity Interests in the Company or any option, warrant or other right to acquire any such
Equity Interests in the Company.




          “Retained Declined Proceeds” has the meaning assigned to such term in Section 2.11(b)




          “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate
amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section
2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’
Revolving Commitments is $750,000,000.




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




          “Revolving Credit Maturity Date” means October 2, 2013.




          “Revolving Lender” means each Lender that has a Revolving Commitment or that holds
Revolving Loans.




-35-









 








          “Revolving Loan” means a Loan made pursuant to Section 2.01(d).




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




          “Sale and Leaseback Transaction” means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.




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




          “Secured Hedge Agreement” means any Swap Agreement that is entered into by and between
any Loan Party or any Subsidiary and any Hedge Bank.




          “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the
Hedge Banks, the Cash Management Banks and any Affiliate of a Lender to which Obligations are owed,
each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to
Article VIII.




          “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they become absolute and matured
and (d) such Person is not engaged in any business, as conducted on such date and as proposed to be
conducted following such date, for which such Person’s property would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.




          “Specified Change in Control” means a “Change of Control”, or like event, if any, as
defined in the agreements governing any Specified Indebtedness.




          “Specified Domestic Subsidiary” means each wholly owned Domestic Subsidiary of the
Company other than (i) the Captive Insurance Subsidiary, (ii) any Foreign Holding Company, (iii)
any Receivables Entity, (iv) any Domestic Subsidiary that is a direct or indirect Subsidiary of a
Foreign Subsidiary and (v) any Domestic Subsidiary that on a consolidated basis with its
Subsidiaries did not have consolidated revenues in excess of 1% of the Company’s consolidated
revenues for the most recently ended four fiscal quarter period of the Company for which financial
statements have been delivered pursuant to Section 5.01(a) or (b) and did not have consolidated
total assets in excess of 1% of Consolidated Total Assets as of the most recently ended fiscal
quarter of the Company for which financial statements have been delivered on or prior to the
Effective Date or pursuant to Section 5.01(a) or (b); provided that upon any wholly owned
Domestic Subsidiary ceasing to meet the requirements of one or more of clauses (i) through (v) of
this definition, the Company shall be deemed to have acquired a Specified




-36-









 







Domestic Subsidiary at
such time and shall cause such Domestic Subsidiary to comply with the applicable provisions of
Section 5.09.




          “Specified Event of Default” means any Event of Default under clause (a), (b), (h) or
(i) of Article VII.




          “Specified Foreign Subsidiary” means each wholly owned Foreign Subsidiary of the Euro
Borrower organized under the laws of Luxembourg other than (u) any Receivables
Entity, (v) any Foreign Subsidiary to the extent the provision of a guarantee and/or the
granting of security over assets by such Foreign Subsidiary could reasonably be expected to result
in adverse tax consequences (as determined in good faith by the Company and notified in writing to
the Administrative Agent), (w) any Foreign Subsidiary that is prohibited by Law (including
financial assistance rules) from becoming a Foreign Guarantor and/or granting security over its
assets, (x) any Foreign Subsidiary to the extent that becoming a Foreign Guarantor and/or granting
security over its assets would result in a breach of the fiduciary duties of the directors of such
Foreign Subsidiary or could reasonably be expected to result in personal or criminal liability of
any director, in each case, as determined in good faith by the Company and notified in writing to
the Administrative Agent, (y) any Foreign Subsidiary that on a consolidated basis with its
Subsidiaries did not have consolidated revenues in excess of 1% of the Company’s consolidated
revenues for the most recently ended four fiscal quarter period of the Company for which financial
statements have been delivered pursuant to Section 5.01(a) or (b) and did not have consolidated
total assets in excess of 1% of Consolidated Total Assets as of the most recently ended fiscal
quarter of the Company for which financial statements have been delivered on or prior to the
Effective Date or pursuant to Section 5.01(a) or (b) and (z) any Foreign Subsidiary to the extent
the cost of complying with legal requirements to obtain such Foreign Guarantee are, in the
reasonable determination of the Administrative Agent (in consultation with the Company), excessive
in relation to the value to be afforded to the Lenders thereby; provided that, upon any
such Foreign Subsidiary ceasing to meet the requirements of one or more of subclauses (u) through
(z) of this definition, the Company shall be deemed to have acquired a Specified Foreign Subsidiary
at such time and shall cause such Foreign Subsidiary to comply with the applicable provisions of
Section 5.09. Any Guarantee provided by a Specified Foreign Subsidiary under any Foreign Guarantee
and Security Agreement shall be limited to the extent required by Law.




          “Specified Indebtedness” means the Interim Loans, the Exchange Notes and any Permitted
Refinancing Indebtedness in respect thereof.




          “Specified Representations” means the representations and warranties set forth in
Sections 3.02, 3.08 and 3.13.




          “Specified Target Default” means, any matter or circumstance that exists in respect of
the Acquired Business that would otherwise constitute a Default or Event of Default or which would
otherwise make any representation and warranty set forth in Article III incorrect in any material
respect and which:





     (A) is capable of being cured on or prior to the 90th day following the Effective Date
(and, if any Borrower or any member of the Acquired Business is aware of



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the relevant
circumstances at the time, reasonable efforts are being used to cure the same);




     (B) has not been procured or approved by the Company;




     (C) does not constitute a Default under clause (h) or (i) of Article VII; and




     (D) has not resulted in a Material Adverse Effect since March 31, 2007;


provided that if any such matters or circumstances are continuing uncured or unwaived at
the end of such 90th day following the Effective Date, such matter shall cease to constitute a
“Specified Target Default” and from and after such 90th day any such continuing unremedied matters
or circumstances shall be deemed to have existed from and after the Effective Date.




          “Specified Transaction” means, with respect to any Test Period, any of the following
events occurring after the first day of such Test Period and prior to the applicable date of
determination: (i) any Investment by the Company or any Subsidiary in any Person (including in
connection with a Permitted Acquisition) other than a Person that was a wholly-owned Subsidiary on
the first day of such period involving consideration paid by the Company or any Subsidiary in
excess of $10,000,000, (ii) any Asset Sale or Casualty Event, (iii) any incurrence or repayment of
Indebtedness (in each case, other than Revolving Loans, Swingline Loans and borrowings and
repayments of Indebtedness in the ordinary course of business under revolving credit facilities
except to the extent there is a reduction in the related Revolving Commitments or other revolving
credit commitment) and (iv) any Restricted Payment involving consideration paid by the Company or
any Subsidiary in excess of $10,000,000; provided that, for purposes of the definition of
“Pro Forma Basis”, the Transaction shall be deemed to have been consummated on July 1, 2007.




          “Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by the Company or any Subsidiary thereof in connection with the
Permitted Receivables Facility which are reasonably customary in an accounts receivable financing
transaction.




          “Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including
any marginal, special, emergency or supplemental reserves or other requirements) established by any
central bank, monetary authority, the Board, the Financial Services Authority, the European Central
Bank or other Governmental Authority for any category of deposits or liabilities customarily used
to fund loans in such currency, expressed in the case of each such requirement as a decimal. Such
reserve percentages shall, in the case of Dollar denominated Loans, include those imposed pursuant
to Regulation D of the Board. Eurocurrency Loans shall be deemed to be subject to such reserve,
liquid asset or similar requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under any applicable law, rule or
regulation, including Regulation D. The Statutory Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in any reserve, liquid asset or similar requirement.




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          “Sterling” and “£” mean the lawful currency of the United Kingdom.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the ordinary voting power for
the election of directors or other governing body are at the time beneficially owned, directly or
indirectly, by the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.




          “Subsidiary” means any subsidiary of the Company; provided that no Permitted
Joint Venture shall be a “Subsidiary” of the Company or any Subsidiary for any purpose under this
Agreement.




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




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




          “Swingline Lender” means JPMorgan Chase Bank, National Association, in its capacity as
lender of Swingline Loans hereunder, or any successor swingline lender hereunder.




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




          “Swingline Loan Sublimit” means $50,000,000.




          “TARGET” means the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other
payment system (if any) reasonably determined by the Administrative Agent to be a suitable
replacement) for the settlement of payments in euro.




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




          “Term Lender” means a U.S. Term A Lender, U.S. Term B Lender, Euro Term Lender or a
Lender holding Incremental Term Loans of any series.




          “Term Loan A Maturity Date” means October 2, 2013.




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          “Term Loan B Maturity Date” means October 2, 2014.




          “Term Loan Commitment” means the U.S. Tranche A Term Loan Commitments, the U.S.
Tranche B Term Loan Commitments and the Euro Term Loan Commitments of all the Lenders.




          “Term Loans” means the U.S. Tranche A Term Loans, the U.S. Tranche B Term Loans, the
Incremental Term Loans of each series and the Euro Term Loans, collectively.




          “Test Period” means the period of four fiscal quarters of the Company ending on a
specified date.




          “Transaction” means, collectively, (a) the Acquisition, (b) the funding of the Term
Loans on the Effective Date, (c) the repayment and termination or discharge of all Indebtedness
outstanding under the Existing Credit Agreement and the Existing Notes Indenture, (d) the
consummation of any other transactions in connection with the foregoing and (e) the payment of fees
and expenses incurred in connection with any of the foregoing.




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




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




          “Uniform Commercial Code” means the Uniform Commercial Code as the same may from time
to time be in effect in the State of New York.




          “U.S. Guarantee and Security Agreement” means, collectively, the U.S. Guarantee and
Security Agreement executed by the U.S. Loan Parties, substantially in the form of Exhibit
F, together with each other security agreement supplement executed and delivered pursuant to
Section 5.09.




          “U.S. Guarantor” means (a) each Subsidiary that is party to the U.S. Guarantee and
Security Agreement on the Effective Date and (b) each Domestic Subsidiary that becomes a party to
the U.S. Guarantee and Security Agreement after the Effective Date pursuant to Section 5.09 or
otherwise.




          “U.S. Loan Parties” means the Company and the U.S. Guarantors.




          “U.S. Perfection Certificate” means a certificate in the form of Annex 2 to the U.S.
Guarantee and Security Agreement or any other form approved by the Administrative Agent.




          “U.S. Perfection Certificate Supplement” means a supplement to the U.S. Perfection
Certificate containing any information not included in the U.S. Perfection Certificate deliv-





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ered to the Administrative Agent on the Effective Date (or in any previously delivered U.S.
Perfection Certificate Supplement) with respect to matters required by Sections 1(a), (2), (4),
(5), (6), (8), (9), (10) and (11) of the U.S. Perfection Certificate.




          “U.S. Tranche A Term Loan” has the meaning assigned to such term in Section 2.01(a).




          “U.S. Tranche A Term Loan Commitment” means with respect to each Lender, the
commitment, if any, of such Lender to make a U.S. Tranche A Term Loan pursuant to Section 2.01(a),
as such commitment may be (a) reduced from time to time pursuant to Section 2.09, (b) increased
from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s
U.S. Tranche A Term Loan Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed a U.S., Tranche A Term Loan Commitment,
as applicable. The initial aggregate amount of the Lenders’ U.S. Tranche A Term Loan Commitments
is $500,000,000.




          “U.S. Tranche B Term Loan” has the meaning assigned to such term in Section 2.01(b).




          “U.S. Tranche B Term Loan Commitment” means, with respect to each Lender, the
commitment, if any, of such Lender to make a U.S. Tranche B Term Loan pursuant to Section 2.01(a),
as such commitment may be (a) reduced from time to time pursuant to Section 2.09, (b) increased
from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s
U.S. Tranche B Term Loan Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed a U.S. Tranche B Term Loan Commitment,
as applicable. The initial aggregate amount of the Lenders’ U.S. Tranche B Term Loan Commitments
is $2,000,000,000.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the then outstanding aggregate principal amount
of such Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the
amount of each then remaining scheduled installment, sinking fund, serial maturity or other
required payment of principal including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse between such date and the
making of such payment.




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




          “wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such
Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying
shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are
owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.




-41-









 








          “Yen” and “¥” mean the lawful money of Japan.




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




          SECTION 1.03. Terms Generally.




          (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 (a)
any definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented, refinanced, restated, replaced or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (c) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.




          (b) Luxembourg terms. In this Agreement, a reference to:





     (i) a “liquidator, trustee in bankruptcy, judicial custodian, compulsory manager,
receiver, administrator receiver, administrator or similar officer” includes any:




     (A) juge-commissaire and/or insolvency receiver (curateur) appointed under the
Luxembourg Commercial Code;




     (B) liquidateur appointed under Articles 141 to 151 of the Luxembourg Act dated
10 August 1915;




     (C) juge-commissaire and/or liquidateur appointed under Article 203 of the
Luxembourg Act dated 10 August 1915 on commercial companies;




     (D) commissaire appointed under the Grand-Ducal Decree dated 24 May 1935 or
under Articles 593 to 614 of the Luxembourg Commercial Code; and



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     (E) juge délégué appointed under the Luxembourg Act dated 14 April 1886;




     (ii) a “winding-up, administration or dissolution” includes, without limitation,
bankruptcy (faillite), liquidation, composition with creditors (concordat préventif de
faillite), moratorium or reprieve from payment (sursis de paiement) and controlled
management (gestion contrôlée); and




     (iii) a person being “unable to pay its debts” includes that person being in a state of
cessation of payments (cessation de paiements).



          SECTION 1.04. Accounting Terms; GAAP.




          (a) Except as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.




          (b) Notwithstanding anything to the contrary herein, for purposes of determining compliance
with any test or covenant or the compliance with or availability of any basket contained in this
Agreement with respect to any Test Period, the Consolidated Leverage Ratio, Consolidated Interest
Coverage Ratio and Consolidated Senior Leverage Ratio shall be calculated with respect to such
period on a Pro Forma Basis.




          SECTION 1.05. Payments on Business Days. When the payment of any Obligation or the performance of
any covenant, duty or obligation is stated to be due or performance required on a day which is not
a Business Day, the date of such payment or performance shall extend to the immediately succeeding
Business Day and such extension of time shall be reflected in computing interest or fees, as the
case may be; provided that, with respect to any payment of interest on or principal of Eurocurrency
Loans, if such extension would cause any such payment to be made in the next succeeding calendar
month, such payment shall be made on the immediately preceding Business Day.




          SECTION 1.06. Pro Forma Compliance. Where any provision of this Agreement requires, as a condition
to the permissibility of an action to be taken by the Company or any of its Subsidiaries at any
time prior to June 30, 2008, compliance on a Pro Forma Basis with Section 6.09, such provision
shall mean that on a Pro Forma Basis, and after giving effect to such action, the Consolidated
Interest Coverage Ratio shall be no less than the minimum level specified for the Test Period
ending June 30, 2008 in Section 6.09 and the Consolidated Senior Leverage Ratio shall be no greater
than the maximum level specified for June 30, 2008 in Section 6.09.




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ARTICLE II




The Credits




          SECTION 2.01. Commitments.




          (a) Subject to the terms and conditions set forth herein, each Lender having a U.S. Tranche A
Term Loan Commitment severally agrees to make a loan (a “U.S. Tranche A Term Loan”) on the
Effective Date to the Company in Dollars by making immediately available funds to the
Administrative Agent’s account not later than the time specified by the Administrative Agent, which
U.S. Tranche A Term Loan shall not exceed for any such Lender the U.S. Tranche A Term Loan
Commitment of such Lender. Amounts repaid in respect of U.S. Tranche A Term Loans may not be
reborrowed.




          (b) Subject to the terms and conditions set forth herein, each Lender having a U.S. Tranche B
Term Loan Commitment severally agrees to make a loan (a “U.S. Tranche B Term Loan”) on the
Effective Date to the Company in Dollars by making immediately available funds to the
Administrative Agent’s account not later than the time specified by the Administrative Agent, which
U.S. Tranche B Term Loans shall not exceed for any such Lender the U.S. Tranche B Term Loan
Commitment of such Lender. Amounts repaid in respect of U.S. Tranche B Term Loans may not be
reborrowed.




          (c) Subject to the terms and conditions set forth herein, each Lender having a Euro Term Loan
Commitment severally agrees to make a loan (a “Euro Term Loan”) on the Effective Date to
the Euro Borrower in Euro by making immediately available funds to the Administrative Agent’s
account not later than the time specified by the Administrative Agent, which Euro Term Loans shall
not exceed for any such Lender the Euro Term Loan Commitment of such Lender. Amounts repaid in
respect of Euro Term Loans may not be reborrowed.




          (d) Subject to the terms and conditions set forth herein, each Revolving Lender agrees to make
Revolving Loans to any Borrower in Agreed Currencies from time to time during the Availability
Period in an aggregate principal amount that will not result in (i) the Dollar Amount of such
Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment, (ii) subject to
Section 2.04, the Dollar Amount of the total Revolving Credit Exposures exceeding the sum of the
total Revolving Commitments or (iii) the Dollar Amount of the total Revolving Credit Exposures
denominated in Foreign Currencies exceeding the Foreign Currency Sublimit. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay
and reborrow Revolving Loans.




          SECTION 2.02. Loans and Borrowings.




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




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shall be responsible for any other Lender’s failure to make Loans as required. Any Swingline
Loan shall be made in accordance with the procedures set forth in Section 2.05.




          (b) Subject to Section 2.14, each Revolving Borrowing and Term Borrowing shall be comprised
entirely of ABR Loans or Eurocurrency Loans as the relevant Borrower may request in accordance
herewith; provided that all Borrowings (other than the Borrowing consisting of Euro Term
Loans) made on the Effective Date must be made as ABR Borrowings but may be converted into
Eurocurrency Borrowings in accordance with Section 2.08. The Borrowing consisting of Euro Term
Loans made on the Effective Date shall be made as a Eurocurrency Borrowing with an Interest Period
of one month. Each ABR Loan shall only be made in Dollars. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the relevant Borrower to repay such Loan in accordance
with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 (or the
Approximate Equivalent Amount of such amount if such Borrowing is denominated in a Foreign
Currency) and not less than $5,000,000 (or the Approximate Equivalent Amount of such amount if such
Borrowing is denominated in a Foreign Currency). At the time that each ABR Revolving Borrowing is
made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Revolving Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e).
Each Swingline Loan shall be in an amount that is an integral multiple of $100,000 and not less
than $500,000. Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of twenty (20) Eurocurrency
Borrowings outstanding.




          (d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period requested (i)
with respect to a Revolving Borrowing would end after the Revolving Credit Maturity Date, (ii) with
respect to a U.S. Tranche A Term Loan Borrowing would end after the Term Loan A Maturity Date or
(iii) with respect to a U.S. Tranche B Term Loan or Euro Term Loan would end after the Term Loan B
Maturity Date.




     SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing, the applicable
Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative
Agent of such request in accordance with the procedures for Revolving Borrowings set forth on
Schedule 1.01B. Each Borrowing Request following the Effective Date shall be irrevocable
and, in the case of a telephonic Borrowing Request, shall be confirmed promptly by hand delivery or
telecopy or transmission by electronic communication in accordance with Section 9.01(b) to the
Administrative Agent of a written Borrowing Request in a form attached hereto as Exhibit
G-1 and signed by the applicable Borrower, or the Company on



-45-









 




behalf of the applicable Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:





     (i) the aggregate amount of the requested Borrowing;




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




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




     (iv) in the case of a Eurocurrency Borrowing, the Agreed Currency and initial Interest
Period to be applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”; and




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


If no election as to the Type of Revolving Borrowing is specified, then, in the case of a Borrowing
denominated in Dollars to any Borrower, the requested Revolving Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Revolving
Borrowing, then the relevant Borrower shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested Borrowing.




          SECTION 2.04. Determination of Dollar Amounts. The Administrative Agent will determine the Dollar
Amount of (a) each Eurocurrency Revolving Borrowing as of the date three (3) Business Days prior to
the date of such Borrowing or, if applicable, the date of conversion/continuation of any Borrowing
as a Eurocurrency Revolving Borrowing, (b) the LC Exposure as of the date of each request for the
issuance, amendment, renewal or extension of any Letter of Credit and (c) each of (i) the total
Revolving Credit Exposures and (ii) the sum of the total outstanding Revolving Loans denominated in
Foreign Currencies and the Foreign Currency LC Exposure, on and as of the last Business Day of each
calendar quarter and, during the continuation of an Event of Default, on any other Business Day
elected by the Administrative Agent in its discretion or upon instruction by the Required Revolving
Lenders. Each day upon or as of which the Administrative Agent determines Dollar Amounts as
described in the preceding clauses (a), (b) and (c) is herein described as a “Computation Date”
with respect to each Credit Event for which a Dollar Amount is determined on or as of such day.




          SECTION 2.05. Swingline Loans.




          (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans in Dollars to the Company from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding the Swingline Loan Sublimit or (ii) the
Dollar Amount of the total Revolving Credit Exposures exceeding the total Revolving Commitments;
provided that the Swingline Lender shall not be required to make




-46-









 







a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Company may borrow, prepay and
reborrow Swingline Loans.




          (b) To request a Swingline Loan, the Company shall notify the Administrative Agent of such
request in accordance with the procedures for Swingline Loans set forth on Schedule 1.01B.
The Administrative Agent will promptly advise the Swingline Lender of any notice of a request for a
Swingline Loan Borrowing received from the Company. The Swingline Lender shall make each Swingline
Loan available to the Company by means of a credit to the general deposit account of the Company
with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.06(e), by remittance to the relevant Issuing Bank) by
3:00 p.m., New York City time, on the requested date of such Swingline Loan.




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




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          SECTION 2.06. Letters of Credit.




          (a) General. Subject to the terms and conditions set forth herein, the Company may
request the issuance of Letters of Credit denominated in Agreed Currencies for its own account
(provided that any Letter of Credit may be provided on behalf of any Subsidiary of the
Company), in a form reasonably acceptable to the Administrative Agent and the relevant Issuing
Bank, at any time and from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by the Company to, or entered
into by the Company with, an Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control; provided, however, if the relevant
Issuing Bank is requested to issue Letters of Credit with respect to a jurisdiction the relevant
Issuing Bank deems, in its reasonable judgment, may at any time subject it to a New Money Credit
Event or a Country Risk Event, the Company shall, at the request of such Issuing Bank, guaranty and
indemnify such Issuing Bank against any and all liabilities, losses and reasonable out-of-pocket
costs resulting from such New Money Credit Event or Country Risk Event, other than any costs,
liabilities or losses resulting from the bad faith, gross negligence or willful misconduct of such
Issuing Bank, in each case in a form and substance reasonably satisfactory to such Issuing Bank.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Company shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the relevant Issuing Bank) to the relevant Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice in the form attached hereto as Exhibit G-4
requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply
with paragraph (c) of this Section), the amount of such Letter of Credit, the Agreed Currency
applicable thereto, the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare, amend, renew or extend such Letter of Credit. The relevant Issuing
Bank shall promptly notify the Administrative Agent of, and the Administrative Agent shall in turn
promptly furnish to the Lenders notice of, any such issuance. If requested by the relevant Issuing
Bank, the Company also shall submit a letter of credit application on such Issuing Bank’s standard
form in connection with any request for a Letter of Credit; provided that such letter of
credit application shall not contain terms inconsistent with the terms of this Agreement and shall
not impose any additional obligations, liabilities or Liens on any Loan Party during the term of
this Agreement. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Company shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or extension
(i) the Dollar Amount of the LC Exposure shall not exceed the LC Exposure Sublimit and (ii) subject
to Section 2.04, the Dollar Amount of the total Revolving Credit Exposures shall not exceed the
total Revolving Commitments.




-48-









 








          (c) Expiration Date. Each Letter of Credit shall, unless otherwise agreed by the
relevant Issuing Bank, expire at or prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) unless cash collateralized in
an amount equal to 102% of the LC Exposure in respect of such Letters of Credit at least five (5)
Business Days prior to the fifth Business Day prior to the Revolving Credit Maturity Date, the date
that is five (5) Business Days prior to the Revolving Credit Maturity Date. It being understood
that any Letter of Credit issued with an expiration date beyond the fifth Business Day prior to the
Revolving Credit Maturity Date shall, to the extent of any undrawn amount remaining thereunder on
the Revolving Credit Maturity Date, cease to be a “Letter of Credit” outstanding under this
Agreement for purposes of the Revolving Lenders’ obligations to participate in Letters of Credit
pursuant to clause (d) below.




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
relevant Issuing Bank or the Revolving Lenders, such Issuing Bank hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate Dollar Amount from
time to time available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the relevant Issuing Bank, such Revolving
Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed
by the Company on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Company for any reason. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.




          (e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the Administrative
Agent in Dollars the Dollar Amount equal to such LC Disbursement, calculated as of the date the
relevant Issuing Bank made such LC Disbursement (or if such Issuing Bank shall so elect in its sole
discretion by notice to the Company, in such other Agreed Currency which was paid by such Issuing
Bank pursuant to such LC Disbursement in an amount equal to such LC Disbursement) not later than
3:00 p.m., Local Time, on the date that such LC Disbursement is made, if the Company shall have
received notice of such LC Disbursement prior to 10:00 a.m., Local Time, on such date, or, if such
notice has not been received by the Company prior to such time on such date, then not later than
3:00 p.m., Local Time, on (i) the Business Day that the Company receives such notice, if such
notice is received prior to 10:00 a.m., Local Time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Company receives such notice, if such notice is not received
prior to such time on the day of receipt; provided that unless the Company elects
otherwise, the Company shall be deemed, subject to the conditions to borrowing set forth herein, to
have requested in accordance with




-49-









 







Section 2.03 or 2.05 that such payment be financed with an ABR
Revolving Borrowing or, if
such amount is less than $1,000,000, Swingline Loan in an equivalent amount of such LC
Disbursement and, to the extent so financed, the Company’s obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the Company
fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of
the applicable LC Disbursement, the payment then due from the Company in respect thereof and such
Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment
then due from the Company, in the same manner as provided in Section 2.07 with respect to Loans
made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the
relevant Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following
receipt by the Administrative Agent of any payment from the Company pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the relevant Issuing Bank or, to the extent
that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made
by a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated
above) shall not constitute a Loan and shall not relieve the Company of its obligation to reimburse
such LC Disbursement. If the Company’s reimbursement of, or obligation to reimburse, any amounts
in any Foreign Currency would subject the Administrative Agent, any Issuing Bank or any Lender to
any stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement
were made or required to be made in Dollars, the Company shall, at its option, either (x) pay the
amount of any such tax requested by the Administrative Agent, the relevant Issuing Bank or the
relevant Lender or (y) reimburse each LC Disbursement made in such Foreign Currency in Dollars, in
an amount equal to the Equivalent Amount, calculated using the applicable exchange rates, on the
date such LC Disbursement is made, of such LC Disbursement.




          (f) Obligations Absolute. The Company’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
relevant Issuing Bank under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Company’s obligations hereunder. Neither the Administrative Agent, the
Revolving Lenders nor the Issuing Banks, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or




-50-









 







delay in transmission or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing thereunder), any error
in interpretation of technical terms or any consequence arising from causes beyond the control
of the relevant Issuing Bank; provided that the foregoing shall not be construed to excuse
the relevant Issuing Bank from liability to the Company to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived by the Company to
the extent permitted by applicable law) suffered by the Company that are caused by the relevant
Issuing Bank’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of bad faith, gross negligence or willful misconduct on the part of the
relevant Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing
Bank shall be deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the relevant Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make payment upon such documents if
such documents are not in strict compliance with the terms of such Letter of Credit.




          (g) Disbursement Procedures. The relevant Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for payment under a Letter
of Credit. The relevant Issuing Bank shall promptly notify the Administrative Agent and the
Company by telephone (confirmed by telecopy or transmission by electronic communication in
accordance with Section 9.01(b)) of such demand for payment and whether such Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Company of its obligation to reimburse the relevant
Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement (other than with
respect to the timing of such reimbursement obligation set forth in clause (e) of this Section).




          (h) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless
the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Company reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Revolving Loans (or in the case such LC Disbursement is
denominated in a Foreign Currency, at the Overnight Foreign Currency Rate for such Agreed Currency
plus the then effective Applicable Rate with respect to Eurocurrency Revolving Loans);
provided that, if the Company fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the relevant Issuing Bank, except that interest accrued on
and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.




-51-









 








          (i) Replacement or Addition of Issuing Bank. Any Issuing Bank may be replaced at any
time by written agreement among the Company, the Administrative Agent and the successor Issuing
Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement of an
Issuing Bank. At the time any such replacement shall become effective,
the Company shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.12(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to
the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank,
or to such successor and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit. A Lender may become an additional Issuing Bank hereunder at
any time by written agreement among the Company, the Administrative Agent and such Lender. The
Administrative Agent shall notify the Revolving Lenders of any such additional Issuing Bank.




          (j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Company receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Company shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the Revolving Lenders, an amount in
cash equal to the Dollar Amount of the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that (i) the portions of such amount attributable to undrawn
Foreign Currency Letters of Credit or LC Disbursements in a Foreign Currency that the Company is
not late in reimbursing shall be deposited in the applicable Foreign Currencies in the actual
amounts of such undrawn Letters of Credit and LC Disbursements and (ii) the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to the Company described in clause (h) or (i) of Article VII. For the
purposes of this paragraph, the Dollar Amount of the Foreign Currency LC Exposure shall be
calculated on the date notice demanding cash collateralization is delivered to the Company. The
Company also shall deposit cash collateral pursuant to this paragraph as and to the extent required
by Section 2.11(c). Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Company under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over
such account. Other than any interest earned on the investment of such deposits, which investments
shall be made at the Company’s risk and expense, such deposits shall not bear interest. Interest
or profits, if any, on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the relevant Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Company for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of




-52-









 







Revolving
Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Company under the Loan Documents. If the Company is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default
or pursuant to Section 2.11(a), such amount plus any accrued interest or realized profits with
respect to such amounts (to the extent not applied as aforesaid)
shall be returned to the Company within three (3) Business Days after all Events of Default
have been cured or waived or such collateral is no longer required pursuant to 2.11(a), as
applicable.




          (k) Conversion. In the event that the Loans become immediately due and payable on any
date pursuant to Article VII, all amounts (i) that the Company is at the time or thereafter becomes
required to reimburse or otherwise pay to the Administrative Agent in respect of LC Disbursements
made under any Foreign Currency Letter of Credit (other than amounts in respect of which the
Company has deposited cash collateral pursuant to paragraph (j) above, if such cash collateral was
deposited in the applicable Foreign Currency to the extent so deposited or applied), (ii) that the
Lenders are at the time or thereafter become required to pay to the Administrative Agent and the
Administrative Agent is at the time or thereafter becomes required to distribute to the relevant
Issuing Bank pursuant to paragraph (e) of this Section in respect of unreimbursed LC Disbursements
made under any Foreign Currency Letter of Credit and (iii) of each Revolving Lender’s participation
in any Foreign Currency Letter of Credit under which an LC Disbursement has been made shall,
automatically and with no further action required, be converted into its Dollar Amount on such date
(or in the case of any LC Disbursement made after such date, on the date such LC Disbursement is
made). On and after such conversion, all amounts accruing and owed to the Administrative Agent,
the relevant Issuing Bank or any Revolving Lender in respect of the obligations described in this
paragraph shall accrue and be payable in Dollars at the rates otherwise applicable hereunder.




          SECTION 2.07. Funding of Borrowings.




          (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds (i) in the case of Loans denominated in Dollars by
2:00 p.m., New York City time (or, in the case of Loans made on the Effective Date, such earlier
time as the Administrative Agent and the Company may agree), to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders in an amount equal
to such Lender’s Applicable Percentage; provided that Term Loans shall be made as provided
in Section 2.01(a), (b) and (c) and (ii) in the case of each Loan denominated in a Foreign
Currency, by 2:00 p.m., Local Time (or, in the case of Loans made on the Effective Date, such
earlier time as the Administrative Agent and the applicable Borrower may agree), in the city of the
Administrative Agent’s Eurocurrency Payment Office for such currency and at such Eurocurrency
Payment Office for such currency; provided that Swingline Loans shall be made as provided
in Section 2.05. The Administrative Agent will make such Loans available to the relevant Borrower
by promptly crediting the amounts so received, in like funds, to (x) an account designated by the
relevant Borrower in the applicable Borrowing Request, in the case of Loans denominated in Dollars
and (y) an account of such Borrower in the relevant jurisdiction and designated by the applicable
Borrower in the applicable Borrowing Request, in the case of Loans denominated in a Foreign
Currency; provided that (x) ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as




-53-









 







provided in Section 2.06(e) shall be remitted by the Administrative Agent to the
relevant Issuing Bank and (y) proceeds of Term Loans shall be made available to the Borrowers as
separately agreed between the Administrative Agent and the Company.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with paragraph (a)
of this Section and may, in reliance upon such assumption, make available to the relevant Borrower
a corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable Lender and such
Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such amount is made
available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i)
in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation
(including without limitation the Overnight Foreign Currency Rate in the case of Loans denominated
in a Foreign Currency) or (ii) in the case of such Borrower, the interest rate applicable to ABR
Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.




          SECTION 2.08. Interest Elections.




          (a) Subject to Section 2.02(b), each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the relevant Borrower may
elect to convert such Borrowing to a different Type (in the case of a Borrowing denominated in
Dollars) or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect
Interest Periods therefor, all as provided in this Section. A Borrower may elect different options
with respect to different portions of the affected Borrowing, in which case each such portion shall
be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This Section shall not
apply to Swingline Loans, which may not be converted or continued.




          (b) To make an election pursuant to this Section, a Borrower, or the Company on its behalf,
shall notify the Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if such Borrower were requesting a Revolving Borrowing
of the Type resulting from such election to be made on the effective date of such election. Each
such telephonic Interest Election Request shall be confirmed promptly by hand delivery or telecopy
or transmission by electronic communication in accordance with Section 9.01(b) to the
Administrative Agent of a written Interest Election Request in a form attached hereto as
Exhibit G-3 or such other form approved by the Administrative Agent and signed by the
relevant Borrower, or the Company on its behalf. Notwithstanding any contrary provision herein,
this Section shall not be construed to permit any Borrower to (i) change the




-54-









 







currency of any
Borrowing, (ii) elect an Interest Period for Eurocurrency Loans that does not comply with Section
2.02(d) or (iii) convert any Borrowing to a Borrowing of a Type not available under the Class of
Commitments pursuant to which such Borrowing was made.




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





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




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




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




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


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




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




          (e) If the relevant Borrower or the Company fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest
Period (i) in the case of a Borrowing denominated in Dollars, such Borrowing shall be converted to
an ABR Borrowing and (ii) in the case of a Borrowing denominated in a Foreign Currency, such
Borrowing shall automatically continue as a Eurocurrency Borrowing in the same Agreed Currency with
an Interest Period of one month unless such Eurocurrency Borrowing is or was repaid in accordance
with Section 2.11. Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so
notifies the Company, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing borrowed by the Company may be converted to or continued as a Eurocurrency
Borrowing, (ii) unless repaid, each Eurocurrency Revolving Borrowing borrowed by the Company shall
be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (iii)
unless repaid, each Borrowing denominated in a Foreign Currency may only be continued for an
Interest Period of one month.





-55-












 





          SECTION 2.09. Termination and Reduction of Commitments.




          (a) Unless previously terminated, (i) the Term Loan Commitments shall terminate at 5:00 p.m.,
New York City time, on the Effective Date and (ii) all other Commitments shall terminate on the
Revolving Credit Maturity Date.




          (b) The Company may at any time terminate, or from time to time reduce, the Revolving
Commitments; provided that (i) each reduction of the Revolving Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $1,000,000 (or, if less, the
remaining amount of such Commitments) and (ii) the Company shall not terminate or reduce the
Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the Dollar Amount of the total Revolving Credit Exposures would
exceed the total Revolving Commitments.




          (c) The Company shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three (3) Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Company pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Company may state that such notice is conditioned upon the effectiveness of other credit
facilities or instruments of Indebtedness, in which case such notice may be revoked by the Company
(by notice to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.




          SECTION 2.10. Repayment of Loans; Evidence of Debt.




          (a) Each Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving Loan made to such
Borrower on the Revolving Credit Maturity Date in the currency of such Loan and (ii) in the case of
the Company, to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the
earlier of the Revolving Credit Maturity Date and the first date after such Swingline Loan is made
that is the 15th or last day of a calendar month and is at least three (3) Business Days
after such Swingline Loan is made; provided that on each date that a Revolving Loan is
made, the Company shall repay all Swingline Loans then outstanding.




          (b) (i) The Company promises to repay in Dollars the U.S. Tranche A Term Loans at the dates
and in the amounts set forth below:




	 	 	 	 	 
	Date	 	Amount
	3/31/08
	 	$	6,250,000	 
	6/30/08
	 	$	6,250,000	 






-56-









 






	 	 	 	 	 
	Date	 	Amount
	9/30/08
	 	$	6,250,000	 
	12/31/08
	 	$	6,250,000	 
	3/31/09
	 	$	12,500,000	 
	6/30/09
	 	$	12,500,000	 
	9/30/09
	 	$	12,500,000	 
	12/31/09
	 	$	12,500,000	 
	3/31/10
	 	$	18,750,000	 
	6/30/10
	 	$	18,750,000	 
	9/30/10
	 	$	18,750,000	 
	12/31/10
	 	$	18,750,000	 
	3/31/11
	 	$	25,000,000	 
	6/30/11
	 	$	25,000,000	 
	9/30/11
	 	$	25,000,000	 
	12/31/11
	 	$	25,000,000	 
	3/31/12
	 	$	31,250,000	 
	6/30/12
	 	$	31,250,000	 
	9/30/12
	 	$	31,250,000	 
	12/31/12
	 	$	31,250,000	 
	3/31/13
	 	$	31,250,000	 
	6/30/13
	 	$	31,250,000	 
	Term Loan A Maturity Date
	 	$	62,500,000	 





provided, however, that the Company shall repay the entire unpaid principal amount
of the U.S. Tranche A Term Loans on the Term Loan A Maturity Date.




          (ii) The Company promises to repay in Dollars the U.S. Tranche B Term Loans at the dates and
in the amounts set forth below:




	 	 	 	 	 
	Date	 	Amount
	3/31/08
	 	$	5,000,000	 
	6/30/08
	 	$	5,000,000	 
	9/30/08
	 	$	5,000,000	 
	12/31/08
	 	$	5,000,000	 
	3/31/09
	 	$	5,000,000	 
	6/30/09
	 	$	5,000,000	 
	9/30/09
	 	$	5,000,000	 
	12/31/09
	 	$	5,000,000	 
	3/31/10
	 	$	5,000,000	 
	6/30/10
	 	$	5,000,000	 
	9/30/10
	 	$	5,000,000	 
	12/31/10
	 	$	5,000,000	 
	3/31/11
	 	$	5,000,000	 
	6/30/11
	 	$	5,000,000	 






-57-









 






	 	 	 	 	 
	Date	 	Amount
	9/30/11
	 	$	5,000,000	 
	12/31/11
	 	$	5,000,000	 
	3/31/12
	 	$	5,000,000	 
	6/30/12
	 	$	5,000,000	 
	9/30/12
	 	$	5,000,000	 
	12/31/12
	 	$	5,000,000	 
	3/31/13
	 	$	5,000,000	 
	6/30/13
	 	$	5,000,000	 
	9/30/13
	 	$	5,000,000	 
	12/31/13
	 	$	5,000,000	 
	3/31/14
	 	$	5,000,000	 
	6/30/14
	 	$	5,000,000	 
	Term Loan B Maturity Date
	 	$	1,870,000,000	 





provided, however, that the Company shall repay the entire unpaid principal amount
of the U.S. Tranche B Term Loans on the Term Loan B Maturity Date.




          (iii) The Euro Borrower promises to repay in euro the Euro Term Loans at the dates and in the
amounts set forth below:




	 	 	 
	Date	 	Amount
	3/31/08

	 	EUR2,826,755.24
	6/30/08

	 	EUR2,826,755.24
	9/30/08

	 	EUR2,826,755.24
	12/31/08

	 	EUR2,826,755.24
	3/31/09

	 	EUR2,826,755.24
	6/30/09

	 	EUR2,826,755.24
	9/30/09

	 	EUR2,826,755.24
	12/31/09

	 	EUR2,826,755.24
	3/31/10

	 	EUR2,826,755.24
	6/30/10

	 	EUR2,826,755.24
	9/30/10

	 	EUR2,826,755.24
	12/31/10

	 	EUR2,826,755.24
	3/31/11

	 	EUR2,826,755.24
	6/30/11

	 	EUR2,826,755.24
	9/30/11

	 	EUR2,826,755.24
	12/31/11

	 	EUR2,826,755.24
	3/31/12

	 	EUR2,826,755.24
	6/30/12

	 	EUR2,826,755.24
	9/30/12

	 	EUR2,826,755.24
	12/31/12

	 	EUR2,826,755.24






-58-









 






	 	 	 
	Date	 	Amount
	3/31/13

	 	EUR2,826,755.24
	6/30/13

	 	EUR2,826,755.24
	9/30/13

	 	EUR2,826,755.24
	12/31/13

	 	EUR2,826,755.24
	3/31/14

	 	EUR2,826,755.24
	6/30/14

	 	EUR2,826,755.24
	Term Loan B Maturity Date

	 	EUR1,057,206,459.09





provided, however, that the Euro Borrower shall repay the entire unpaid principal
amount of the Euro Term Loans on the Term Loan B Maturity Date.




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




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




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




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




          SECTION 2.11. Prepayment of Loans.




          (a) Optional Prepayments. (i) Any Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in part, without premium or penalty, subject to
prior notice in accordance with paragraph (a)(ii) of this Section.





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          (ii) The applicable Borrower, or the Company on behalf of the applicable Borrower, shall
notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline
Lender) by telephone (confirmed by telecopy or transmission by electronic communication in
accordance with Section 9.01(b)) of any prepayment hereunder (i) in the case of prepayment of a
Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days
before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than
11:00 a.m., New York City time, on the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment
is given in connection with a conditional notice of termination of the Commitments as contemplated
by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09. Promptly following receipt of any such notice relating to
a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of
Term Loans pursuant to this Section 2.11(a) shall be applied to repayments thereof required
pursuant to Section 2.10(b) in the order selected by the Company. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the notice of prepayment. Prepayments pursuant
to this Section 2.11(a) shall be accompanied by accrued interest to the extent required by Section
2.13 and shall be subject to Section 2.16.




          (iii) If at any time, (A) other than as a result of fluctuations in currency exchange rates,
the sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures
(calculated, with respect to those Credit Events denominated in Foreign Currencies, as of the most
recent Computation Date with respect to each such Credit Event) exceeds the total Revolving
Commitments or (B) solely as a result of fluctuations in currency exchange rates, the sum of the
aggregate principal Dollar Amount of all of the outstanding Revolving Loans and LC Exposure, in
each case denominated in Foreign Currencies, as of the most recent Computation Date with respect to
each such Credit Event, exceeds 105% of the Foreign Currency Sublimit and the Borrowers receive
written notice from the Administrative Agent of such excess, the Borrowers shall promptly give
notice to repay Revolving Borrowings pursuant to Section 2.11(a)(i) or cash collateralize LC
Disbursements in an account with the Administrative Agent pursuant to Section 2.06(j), as
applicable, in an aggregate principal amount sufficient to eliminate any such excess.




          (b) Mandatory Prepayments. (i) No later than 105 days after the end of each fiscal
year of the Company (commencing with the fiscal year ending (x) March 31, 2009 or (y) if the
Company shall have changed its fiscal year to a calendar year prior to December 31, 2008, December
31, 2008), the Company shall apply an amount in accordance with Section 2.11(b)(iv) in an aggregate
Dollar Amount equal to (A) the ECF Percentage of Excess Cash Flow, if positive, for the fiscal year
covered by such financial statements minus (B) the sum of (x) all voluntary prepayments of Term
Loans during such fiscal year and (y) all voluntary prepayments of Revolving Loans during such
fiscal year to the extent the Revolving Commitments are permanently reduced by the amount of such
payments.




-60-









 








          (ii) (A) If the Company or any Subsidiary receives any Net Cash Proceeds from any Asset Sale
or Casualty Event, the Company shall apply an amount equal to 100% of such Net Cash Proceeds (in
the case of an Asset Sale by a Foreign Subsidiary in connection with which funds are repatriated to
the United States in order to comply with this Section 2.11(b)(ii), net of additional taxes payable
or reserved against as a result thereof) in accordance with Section 2.11(b)(iv) on or prior to the
date which is ten (10) Business Days after the date of the realization or receipt of such Net Cash
Proceeds; provided that no such prepayment shall be required pursuant to this Section
2.11(b)(ii)(A) with respect to such Net Cash Proceeds (x) that the Company shall reinvest in
accordance with Section 2.11(b)(ii)(B) provided that this clause (x) shall not apply to any Asset
Sale made in reliance on Section 6.11(m) or (y) if on a Pro Forma Basis, the Company’s Consolidated
Leverage Ratio as of the last day of the most recent fiscal quarter for which financial statements
have been delivered pursuant to Section 5.01(a) or (b) prior to the date of receipt of such Net
Cash Proceeds is equal to or less than 3.5 to 1.0;




          (B) With respect to any Net Cash Proceeds realized or received with respect to any Asset Sale
or Casualty Event, at the option of the Company the Company may reinvest all or any portion of such
Net Cash Proceeds in assets useful for the Company’s or a Subsidiary’s business within (x) twelve
(12) months following receipt of such Net Cash Proceeds or (y) if the Company or a Subsidiary
enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12)
months following receipt thereof, within six (6) months following the last day of such twelve month
period; provided that any such Net Cash Proceeds that are not so reinvested within the
applicable time period set forth above shall be applied as set forth in Section 2.11(b)(ii)(A)
within five (5) Business Days after the end of the applicable time period set forth above.




          (iii) If the Company or any Subsidiary incurs or issues any Indebtedness not expressly
permitted to be incurred or issued pursuant to Section 6.01 (without prejudice to the restrictions
therein), the Company shall apply an amount equal to 100% of such Net Cash Proceeds received by the
Company or any Subsidiary therefrom in accordance with Section 2.11(b)(iv) on or prior to the date
which is three (3) Business Days after the receipt of such Net Cash Proceeds.




          (iv) The Company shall notify the Administrative Agent in writing of any mandatory prepayment
of Term Loans required to be made pursuant to clauses (i) through (iii) of this Section 2.11(b) at
least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify
the date of such prepayment and provide a reasonably detailed calculation of the amount of such
prepayment; provided that in the case of the Net Cash Proceeds from an Asset Sale by a
Foreign Subsidiary made in reliance on Section 6.11(m), if the Company determines that the
repatriation of such proceeds into the United States in order to prepay Term Loans of the U.S.
Borrower would result in adverse tax consequences to the Company or its Restricted Subsidiaries
then, in lieu of applying all or a portion of such Net Cash Proceeds pursuant to Section
2.11(b)(iv), the Company may apply such portion of such Net Cash Proceeds to prepay Euro Term Loans
in accordance with Section 2.11(a) within ten (10) Business Days following the date of receipt of
such Net Cash Proceeds. The Administrative Agent will promptly notify each Term Lender of the
contents of the Company’s prepayment notice and of such Term Lender’s pro rata share of the
prepayment. Each Term Lender may reject all or a





-61-









 







portion of its pro rata share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (i) through (iii) of
this Section 2.11(b) by providing written notice (each, a “Rejection Notice”) to the
Administrative Agent and the Company no later than 5:00 p.m. (New York time) one Business Day after
the date of such Lender’s receipt of notice from the Administrative Agent regarding such
prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the
mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver
a Rejection Notice to the Administrative Agent within the time frame specified above or such
Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such
failure will be deemed an acceptance of the total amount of such Lender’s pro rata share of such
mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not
so declining such prepayment on a pro rata basis in accordance with the Dollar Amounts of the Term
Loans of such Lenders (with such non-declining Term Lenders having the right to decline any
prepayment with Declined Proceeds at the time and in the manner specified by the Administrative
Agent). To the extent such non-declining Term Lenders elect to decline their pro rata share of
such Declined Proceeds, any Declined Proceeds remaining thereafter (the “Retained Declined
Proceeds”) shall be retained by the Company and used for any purpose not otherwise prohibited
by this Agreement. The Administrative Agent may make appropriate adjustments to the accounts of
the Term Lenders to reflect any non pro rata payment of Term Loans of any Class as a result of this
Section 2.11(b)(iv).




          (v) Notwithstanding any other provisions of this Section 2.11(b) to the contrary, (i) to the
extent that any of or all the Net Cash Proceeds of any Asset Sale pursuant to Section 6.11(j) or
(k) by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.11(b)(ii) (a
“Foreign Disposition”), the Net Cash Proceeds of any Casualty Event from a Foreign
Subsidiary (a “Foreign Casualty Event”), or Excess Cash Flow attributable to Foreign
Subsidiaries are prohibited or delayed by applicable local Law from being repatriated to the United
States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required
to be applied to repay Term Loans at the times provided in this Section 2.11(b) but may be retained
by the applicable Foreign Subsidiary so long, but only so long, as the applicable Law will not
permit or delays repatriation to the United States (the Company hereby agreeing to cause the
applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable
Law to permit such repatriation), and once such repatriation of any of such affected Net Cash
Proceeds or Excess Cash Flow is permitted under the applicable Law, such repatriation will be
immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly
(and in any event not later than five (5) Business Days after such repatriation) applied (net of
additional taxes payable or reserved against as a result thereof) to the repayment of the Term
Loans pursuant to this Section 2.11(b) to the extent provided herein and (ii) to the extent that
the Company has determined in good faith that repatriation of any of or all the Net Cash Proceeds
of any Foreign Disposition, any Foreign Casualty Event or Excess Cash Flow would have adverse tax
consequences, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the
applicable Foreign Subsidiary, provided that, in the case of this clause (ii), on or before
the date 24 months following the date of receipt of such Net Cash Proceeds or the date on which
Excess Cash Flow so retained would otherwise have been required to be applied to reinvestments or
prepayments pursuant to this Section 2.11(b), (x) the Company shall apply an amount equal to such
Net Cash Proceeds or Excess Cash Flow to such reinvestments or




-62-









 







prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Company rather than such Foreign Subsidiary,
less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been
repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if
received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be
applied to the repayment of Indebtedness of a Foreign Subsidiary.




          (vi) Each prepayment of Term Loans pursuant to this Section 2.11(b) shall be applied, subject
to Section 2.11(b)(iv), pro rata to each Class of Term Loans and shall be further applied to such
Class of Term Loans, first in direct order of maturity to repayments thereof required pursuant to
Section 2.10(b) in the 24-month period following the date such prepayment becomes payable and
second ratably to the remaining repayments of Term Loans of such Class required pursuant to Section
2.10(b); and each such prepayment of any Class of Term Loans shall be offered to the Lenders
holding such Term Loans on a pro rata basis.




          (vii) Any prepayment of Term Loans pursuant to this Section 2.11(b) shall be accompanied by
accrued interest to the extent required by Section 2.13 and shall be subject to Section 2.16.




          SECTION 2.12. Fees.




          (a) The Company agrees to pay to the Administrative Agent for the account of each Revolving
Lender a facility fee, which shall accrue at the Applicable Rate on the daily Dollar Amount of the
Revolving Commitment of such Lender (whether used or unused) during the period from and including
the Effective Date to but excluding the date on which such Commitment terminates; provided
that, if such Lender continues to have any Revolving Credit Exposure after its Revolving Commitment
terminates, then such facility fee shall continue to accrue on the daily Dollar Amount of such
Lender’s Revolving Credit Exposure from and including the date on which its Revolving Commitment
terminates to but excluding the date on which such Lender ceases to have any Revolving Credit
Exposure; provided, however, that any facility fee accrued with respect to the
Revolving Commitment of a Defaulting Lender during the period prior to the time such Lender became
a Defaulting Lender and unpaid at such time shall not be payable by the Company so long as such
Lender shall be a Defaulting Lender except to the extent that such facility fee shall otherwise
have been due and payable by the Company prior to such time; and provided further
that no facility fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as
such Lender shall be a Defaulting Lender. Accrued facility fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. All facility fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).




          (b) The Company agrees to pay (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily Dollar Amount of such





-63-









 







Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which
such Lender ceases to have any LC Exposure and (ii) to the relevant Issuing Bank a fronting fee,
which shall accrue at the rate of 0.125% per annum on the average daily Dollar Amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable
to Letters of Credit issued by such Issuing Bank during the period from and including the Effective
Date to but excluding the later of the date of termination of the Revolving Commitments and the
date on which there ceases to be any LC Exposure, as well as such Issuing Bank’s standard fees and
commissions with respect to the issuance, amendment, cancellation, negotiation, transfer,
presentment, renewal or extension of any Letter of Credit or processing of drawings thereunder.
Unless otherwise specified above, participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall be payable on the
third (3rd) Business Day following such last day, commencing on the first such date to
occur after the Effective Date; provided that all such fees shall be payable on the date on
which the Revolving Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees payable to an Issuing
Bank pursuant to this paragraph shall be payable within ten (10) days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but excluding the last
day).




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




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




          SECTION 2.13. Interest.




          (a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the Alternate Base Rate in effect from time to time plus the Applicable Rate.




          (b) (i) The Loans comprising each Eurocurrency Borrowing denominated in an Agreed Currency
other than euro shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.




          (ii) The Loans comprising each Eurocurrency Borrowing denominated in euro shall bear interest
at the Adjusted EURIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by any Borrower hereunder is not paid when due, whether at





-64-









 







stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.




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




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




          SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurocurrency Borrowing:





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




     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate, LIBO Rate, Adjusted EURIBO Rate or EURIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making
or maintaining their Loans (or its Loan) included in such Borrowing for such Interest
Period;


then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lenders
by telephone or telecopy or transmission by electronic communication in accordance with Section
9.01(b) as promptly as practicable thereafter and, until the Administrative Agent notifies the
applicable Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurocurrency Revolving Borrowing,





-65-









 







such Borrowing shall be made as an ABR Borrowing and (iii) all Euro Term Loans shall bear interest at a rate determined by the Administrative Agent in good faith to reflect the Euro Term
Lenders cost of maintaining the Euro Term Loans plus the Applicable Rate.




          SECTION 2.15. Increased Costs.




          (a) If any Change in Law shall:





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




     (ii) impose on any Lender or any Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter
of Credit or participation therein (excluding imposition of Taxes resulting from a Change in
Law, which shall be governed by Section 2.17);


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 Loan
(including, without limitation, pursuant to any conversion of any Borrowing denominated in an
Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to increase the cost
to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of
Credit (including, without limitation, pursuant to any conversion of any Borrowing denominated in
an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to reduce the
amount of any sum received or receivable by such Lender or such Issuing Bank hereunder, whether of
principal, interest or otherwise (including, without limitation, pursuant to any conversion of any
Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed
Currency), in each case by an amount deemed by such Lender or such Issuing Bank to be material in
the context of its making of, and participation in, extensions of credit under this Agreement,
then, upon the request of such Lender or such Issuing Bank, the applicable Borrower will pay to
such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank, as the case may be, for such additional costs incurred
or reduction suffered.




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



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amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction
suffered.




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




          (d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s
right to demand such compensation; provided that the Company shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Company of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.




          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an Event of Default or
as a result of any prepayment pursuant to Section 2.11), (b) the conversion of any Eurocurrency
Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11 and
is revoked in accordance therewith) or (d) the assignment of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto as a result of a request by the Company
pursuant to Section 2.19 or the CAM Exchange, then, in any such event, the Borrowers shall
compensate each Lender for the loss, cost and expense (excluding loss of anticipated profit)
attributable to such event. Such loss, cost or expense to any Lender may be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate or Adjusted EURIBO Rate (as applicable) that would have been applicable to such
Loan (and excluding any Applicable Rate), for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert
or continue, for the period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period, for deposits in the
relevant currency of a comparable amount and period from other banks in the eurocurrency market. A
certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the applicable Borrower and
shall be conclusive absent manifest error. The applicable Borrower shall pay such Lender the
amount shown as due on any such certificate within ten (10) days after receipt thereof.




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          SECTION 2.17. Taxes.




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




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




          (c) The relevant Borrower shall indemnify the Administrative Agent, each Lender and each
Issuing Bank, within ten (10) days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or such Issuing
Bank, as the case may be, on or with respect to any payment by or on account of any obligation of
such Borrower (including, for the avoidance of doubt, any payment by any Loan Party on behalf of
such Borrower) hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section), and any other Other Taxes, 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 Company by a Lender or
an Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or an
Issuing Bank, shall be conclusive absent manifest error.




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




          (e) Any Foreign Lender that is legally entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which a Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to
such Borrower (with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by applicable law or
reasonably requested by such Borrower as will permit such payments to be made without withholding
or at a reduced rate.




          Without limiting the generality of the foregoing, with respect to any Loan made by a Borrower
that is organized in the United States of America or the Euro Borrower, any For-




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eign Lender shall, to the extent it may lawfully do so, 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 successor
forms) claiming eligibility for benefits of an income tax treaty to which the United States
of America is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any successor
forms),




     (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, in substantially the
form of Exhibit J, or any other form approved by the Administrative Agent, 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 that no payments in connection with the Loan Documents
are effectively connected with such Foreign Lender’s conduct of a U.S. trade or business and
(y) duly completed copies of Internal Revenue Service Form W-8BEN (or any successor forms),
or




     (iv) any other form prescribed by applicable requirements of Law as a basis for
claiming exemption from or a reduction in U.S. federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by applicable
requirements of Law to permit the Borrower and the Administrative Agent to determine the
withholding or deduction required to be made.



          To the extent it is legally entitled to do so: any Foreign Lender that does not act or ceases
to act for its own account with respect to any portion of any sums paid or payable to such Lender
under any of the Loan Documents (for example, in the case of a typical participation) shall deliver
to the Administrative Agent and the Borrower (in such number of original copies as shall be
requested by the recipient), on or prior to the date such Foreign Lender becomes a Lender, or on
such later date when such Foreign Lender ceases to act for its own account with respect to any
portion of any such sums paid or payable (and from time to time thereafter, if reasonably requested
by the Borrower or Administrative Agent) duly completed copies of Internal Revenue Service Form
W-8IMY (or any successor forms), together with information, if any, such Foreign Lender is required
to transmit with such form, and any other certificate or statement of exemption required under the
Code or the regulations thereunder, to establish that such Foreign Lender is not acting for its own
account with respect to a portion of any such sums payable to such Foreign Lender and to establish
that such remaining portion may be received without deduction for, or at a reduced rate of, U.S.
federal withholding tax.




          Each Foreign Lender shall, from time to time after the initial delivery by such Foreign Lender
of the forms described above, whenever a lapse in time or change in such For-




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eign Lender’s circumstances renders such forms, certificates or other evidence so delivered
obsolete or inaccurate, promptly (1) deliver to the Company and the Administrative Agent (in such
number of copies as shall be requested by the recipient) renewals, amendments or additional or
successor forms, properly completed and duly executed by such Foreign Lender, together with any
other certificate or statement of exemption required in order to confirm or establish such Foreign
Lender’s status or that such Foreign Lender is entitled to an exemption from or reduction in U.S.
federal withholding tax or (2) notify Administrative Agent and the Company of its inability to
deliver any such forms, certificates or other evidence.




          (f) If the Administrative Agent, an Issuing Bank or a Lender determines, in its sole good
faith discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrowers or with respect to which a Borrower has paid additional amounts
pursuant to this Section 2.17, it shall promptly pay over such refund to such Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by such Borrower under this
Section 2.17 with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Issuing Bank or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund); provided that such Borrower, upon the request of the Administrative Agent, such
Issuing Bank or such Lender, agrees to repay the amount paid over to such 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, such Issuing Bank or
such Lender is required to repay such refund to such Governmental Authority. The Administrative
Agent, such Issuing Bank or such Lender shall, at the Company’s request, provide the Company with a
copy of any notice of assessment or other evidence of the requirement to repay such refund received
from the relevant Governmental Authority (provided that the Administrative Agent, such
Issuing Bank or such Lender may delete any information therein that the Administrative Agent, such
Issuing Bank or such Lender deems confidential). This Section shall not be construed to require
the Administrative Agent or any Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to any Borrower or any other Person.




          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.




          (a) Each Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) prior to (i) in the case of payments by the Company denominated
in Dollars, 2:00 p.m., New York City time and (ii) in the case of payments by the Euro Borrower or
payments denominated in a Foreign Currency, 2:00 p.m., Local Time, in the city of the
Administrative Agent’s Eurocurrency Payment Office for such currency, in each case on the date when
due, in immediately available funds, without setoff or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made (i) in the same currency in which the applicable Credit Event was made
(or where such currency has been converted to Dollars, in Dollars) and (ii) to the Administrative
Agent at its offices at 270 Park Avenue, New York, New York 10017 or, in the case of a Credit Event
denominated in a Foreign




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Currency, the Administrative Agent’s Eurocurrency Payment Office for such currency, except payments to be made directly to an Issuing Bank or Swingline Lender as expressly provided
herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall distribute any such
payments denominated in the same currency received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on
a day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. Notwithstanding the foregoing provisions of this Section, if,
after the making of any Credit Event in any Foreign Currency, currency control or exchange
regulations are imposed in the country which issues such currency with the result that the type of
currency in which the Credit Event was made (the “Original Currency”) no longer exists or
any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders
in such Original Currency, then all payments to be made by such Borrower hereunder in such currency
shall instead be made when due in Dollars in an amount equal to the Dollar Amount (as of the date
of repayment) of such payment due, it being the intention of the parties hereto that the Borrowers
take all risks of the imposition of any such currency control or exchange regulations.




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




          (c) 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 its Loans or participations in
LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face value) participations
in the Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and participations in LC Disbursements and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by any Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC Disbursements and Swingline
Loans to any assignee or participant, other than to the Company or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph





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




          (d) Unless the Administrative Agent shall have received notice from the relevant Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the
Lenders or the relevant Issuing Bank hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Bank,
as the case may be, the amount due. In such event, if such Borrower has not in fact made such
payment, then each of the Lenders or the relevant Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation (including without limitation the
Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency).




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations
under such Sections until all such unsatisfied obligations are fully paid.




          SECTION 2.19. Mitigation Obligations; Replacement of Lenders.




          (a) If any Lender requests compensation under Section 2.15, or if any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the good faith judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Company hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender
in connection with any such designation or assignment. Any Lender claiming reimbursement of such
costs and expenses shall deliver to the Company a certificate setting forth such costs and expenses
in reasonable detail which shall be conclusive absent manifest error.




          (b) If any Lender requests compensation under Section 2.15, or if any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender becomes a Defaulting Lender, or any Lender is unable to
fund its portion of any Loan as a result of any applicable law




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or regulation prohibiting, or any order, judgment or decree of any Governmental Authority enjoining, prohibiting or restraining, any
Lender from making any Loan requested by such Borrower or any Issuing Bank or any Lender from issuing, renewing, extending or increasing the
face amount of or participating in the Letter of Credit requested to be issued, renewed, extended
or increased by such Borrower, or if any Lender fails to grant a consent in connection with any
proposed change, waiver, discharge or termination of the provisions of this Agreement as
contemplated by Section 9.02 for which the consent of each Lender or each affected Lender is
required but the consent of the Required Lenders is obtained, then the Company may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under the Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Company shall have received the prior written consent of
the Administrative Agent, which consent shall not unreasonably be withheld, to the extent required
by Section 9.04, and (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company
(in the case of all other amounts).




          SECTION 2.20. Expansion Option.




          (a) The Company may from time to time elect to increase the Revolving Commitments
(“Increased Commitments”) or enter into one or more tranches of term loans or increase the
amount of the U.S. Tranche B Term Loans or Euro Term Loans (each, an “Incremental Term
Loan”), in each case in an aggregate principal Dollar Amount of not less than $25,000,000
(provided that such amount may be less than the Equivalent Amount of $25,000,000 if such
amount represents all remaining availability under the limit set forth in this sentence) so long
as, after giving effect thereto, the aggregate amount of all such Increased Commitments and all
such Incremental Term Loans does not exceed the Equivalent Amount of $500,000,000. The Company may
arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so
agreeing to an increase in its Revolving Commitment, or to participate in such Incremental Term
Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other
entities (each such new bank, financial institution or other entity, an “Augmenting
Lender”), to increase their existing Revolving Commitment, or to participate in such
Incremental Term Loan, or extend Revolving Commitments, as the case may be; provided that
(i) each Augmenting Lender shall be subject to the approval of the Company and the Administrative
Agent (not to be unreasonably withheld) and (ii) (x) in the case of an Increasing Lender, the
Company and such Increasing Lender execute an agreement substantially in the form of Exhibit
C hereto (or otherwise reasonably acceptable to the Administrative Agent), and (y) in the case
of an Augmenting Lender, the Company and such Augmenting Lender execute an agreement substantially
in the form of Exhibit D hereto (or otherwise reasonably acceptable to the Administrative
Agent). Without the consent of any Lenders other than the relevant Increasing Lenders or
Augmenting Lenders, this Agreement and the other Loan Documents may be amended as may be necessary
or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect
the provisions of this Section 2.20. Increases





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and new Revolving Commitments and Incremental Term Loans created pursuant to this Section 2.20 shall become effective on the date agreed by the
Company, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders and the
Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving
Commitments (or in the Revolving Commitment of any Lender) or tranche of Incremental Term Loan
shall become effective under this paragraph unless (i) on the proposed date of the effectiveness of
such increase or Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) of
Section 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent
shall have received a certificate to that effect dated such date and executed by a Financial
Officer of the Company, and (ii) the Company and its Subsidiaries shall be in compliance,
calculated on a Pro Forma Basis, with the covenants contained in Section 6.09 as of the last day of
the most recent fiscal quarter of the Company for which financial statements have been delivered
pursuant to Section 5.01(a) or (b). On the effective date of any increase in the Revolving
Commitments or any Incremental Term Loans being made (assuming that any Increased Commitments were
fully drawn), (i) each relevant Increasing Lender and Augmenting Lender shall make available to the
Administrative Agent such amounts in immediately available funds as the Administrative Agent shall
determine, for the benefit of the other Lenders, as being required in order to cause, after giving
effect to such increase and the use of such amounts to make payments to such other Lenders, each
Lender’s portion of the outstanding Loans of all the Lenders to equal its Applicable Percentage of
such outstanding Loans, and (ii) except in the case of any Incremental Term Loans, if, on the date
of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior
to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the
proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and Augmenting
Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or
any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans
owing to each Lender with a Revolving Commitment is equal to such Lender’s pro rata share (after
giving effect to any nonratable Increased Commitment pursuant to this Section 2.20) of all then
outstanding Revolving Loans. The Administrative Agent and the Lenders hereby agree that the
borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained
elsewhere in this Agreement shall not apply to the transactions effected pursuant to the
immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the
immediately preceding sentence shall be accompanied by payment of all accrued interest on the
amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by
the Borrowers pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on
the last day of the related Interest Periods. The Incremental Term Loans (a) shall rank pari passu
in right of payment and of security with the Revolving Loans, the U.S. Tranche A Term Loans and the
U.S. Tranche B Term Loans or, in the case of Incremental Term Loans that are Euro Term Loans, the
Euro Term Loans, as applicable, (b) shall not mature earlier than the Term Loan B Maturity Date
(but may have amortization prior to such date, provided that the Weighted Average Life to
Maturity of the Incremental Term Loans shall not be shorter than the Weighted Average Life to
Maturity of the U.S. Tranche B Term Loans) and (c) shall be treated substantially the same as (and
in any event no more favorably than) the Revolving Loans and the initial U.S. Tranche B Term Loans,
provided that (i) the terms and conditions applicable to any tranche of Incremental Term
Loans may be different from those applicable to the U.S. Tranche B Term Loans, to the extent,
except as specifically contemplated hereby, reasonably satisfactory to





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the Administrative Agent, and (ii) the Incremental Term Loans may be priced differently than the Term Loans.




          (b) This Section 2.20 shall supersede any provisions in Section 9.02 to the contrary.




          SECTION 2.21. Market Disruption. Notwithstanding the satisfaction of all conditions referred to in Article II and Article IV
with respect to any Revolving Borrowing to be effected in any Foreign Currency, if (i) there shall
occur on or prior to the date of such Borrowing any change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls which would in the
reasonable opinion of the Administrative Agent, the relevant Issuing Bank (if such Credit Event is
a Letter of Credit) or the Required Revolving Lenders make it impracticable for the applicable
Eurocurrency Borrowings or Letters of Credit comprising such Credit Event to be denominated in the
Agreed Currency specified by the applicable Borrower or (ii) an Equivalent Amount of such currency
is not readily calculable, then the Administrative Agent shall forthwith give notice thereof to
such Borrower, the Lenders and, if such Credit Event is a Letter of Credit, the relevant Issuing
Bank, and such Credit Events shall not be denominated in such Agreed Currency but shall, except as
otherwise set forth in Section 2.07, be made on the date of such Credit Event in Dollars, (a) if
such Credit Event is a Borrowing, in an aggregate principal amount equal to the Dollar Amount of
the aggregate principal amount specified in the related Borrowing Request or Interest Election
Request, as the case may be, unless such Borrower notifies the Administrative Agent at least one
(1) Business Day before such date that (i) it elects not to borrow on such date or (ii) it elects
to borrow on such date in a different Agreed Currency, as the case may be, in which the
denomination of such Loans would, in the reasonable opinion of the Administrative Agent and the
Required Revolving Lenders, be practicable and in an aggregate principal amount equal to the Dollar
Amount of the aggregate principal amount specified in the related Borrowing Request or Interest
Election Request, as the case may be or (b) if such Credit Event is a Letter of Credit, in a face
amount equal to the Dollar Amount of the face amount specified in the related request or
application for such Letter of Credit, unless such Borrower notifies the Administrative Agent at
least one (1) Business Day before such date that (i) it elects not to request the issuance of such
Letter of Credit on such date or (ii) it elects to have such Letter of Credit issued on such date
in a different Agreed Currency, as the case may be, in which the denomination of such Letter of
Credit would in the reasonable opinion of the relevant Issuing Bank, the Administrative Agent and
the Required Revolving Lenders be practicable and in face amount equal to the Dollar Amount of the
face amount specified in the related request or application for such Letter of Credit, as the case
may be.




          SECTION 2.22. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due
from any Borrower hereunder in the currency expressed to be payable herein (the “specified
currency”) into another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent’s main New York City office on the Business Day preceding that
on which final, non appealable judgment is given. The obligations of each Borrower in respect of
any sum due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment
in a currency other than




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the specified currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be) of
any sum adjudged to be so due in such other currency such Lender or the Administrative Agent (as
the case may be) may in accordance with normal, reasonable banking procedures purchase the
specified currency with such other currency. If the amount of the specified currency so purchased is less than
the sum originally due to such Lender or the Administrative Agent, as the case may be, in the
specified currency, each Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount of the specified
currency so purchased exceeds (a) the sum originally due to any Lender or the Administrative Agent,
as the case may be, in the specified currency and (b) any amounts shared with other Lenders as a
result of allocations of such excess as a disproportionate payment to such Lender under Section
2.18, such Lender or the Administrative Agent, as the case may be, agrees to remit such excess to
such Borrower.




ARTICLE III




Representations and Warranties




          Each Borrower represents and warrants to the Lenders as of the Effective Date and (except as
to representations and warranties made as of a date certain) as of the date such representations
and warranties are deemed to be made under Section 4.02 of this Agreement, that:




          SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Company and its Subsidiaries is duly organized, validly existing and in good
standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of
the jurisdiction of its organization, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing (to the extent such concept is applicable) in, every
jurisdiction where such qualification is required. Schedule 3.01 hereto identifies each
Subsidiary on the Effective Date, if such Subsidiary is a Specified Domestic Subsidiary or a
Specified Foreign Subsidiary, the jurisdiction of its incorporation or organization, as the case
may be, the percentage of issued and outstanding shares of each class of its capital stock or other
equity interests owned by the Company and the other Subsidiaries and, if such percentage is not
100% (excluding directors’ qualifying shares as required by law), a description of each class
issued and outstanding. All of the outstanding shares of capital stock and other equity interests,
to the extent owned by the Company or any Subsidiary, of each Subsidiary are validly issued and
outstanding and fully paid and nonassessable and all such shares and other equity interests
indicated on Schedule 3.01 as owned by the Company or another Subsidiary are owned,
beneficially and of record, by the Company or any Subsidiary on the Effective Date free and clear
of all Liens, other than Liens permitted under Section 6.02. As of the Effective Date, there are
no outstanding commitments or other obligations of the Company or any Subsidiary to issue, and no
options, warrants or other rights of any Person to acquire, any




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shares of any class of capital stock or other equity interests of any Subsidiary, except as disclosed on Schedule 3.01.




          SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan Party’s corporate, limited liability company or
partnership powers and have been duly authorized by all necessary corporate or other organizational
and, if required, stockholder action. The Loan Documents have been duly executed and delivered by the Loan Parties party thereto and
constitute a legal, valid and binding obligation of the Loan Parties party thereto, enforceable
against such Loan Parties in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law.




          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except for (A) filings necessary to
perfect or maintain the perfection of the Liens on the Collateral granted by the Loan Parties in
favor of the Administrative Agent, (B) the approvals, consents, registrations, actions and filings
which have been duly obtained, taken, given or made and are in full force and effect and (C) those
approvals, consents, registrations or other actions or filings, the failure of which to obtain or
make could not reasonably be expected to have a Material Adverse Effect, (b) will not violate (i)
any applicable law or regulation or order of any Governmental Authority or (ii) the charter,
by-laws or other organizational documents of any Loan Party, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon any Loan Party or its
assets, or give rise to a right thereunder to require any payment to be made by any Loan Party, and
(d) will not result in the creation or imposition of any Lien on any material asset of any Loan
Party (other than pursuant to the Loan Documents and Liens permitted by Section 6.02); except with
respect to any violation or default referred to in clause (b)(i) or (c) above, to the extent that
such violation or default could not reasonably be expected to have a Material Adverse Effect.




          SECTION 3.04. Financial Statements; Financial Condition; No Material Adverse Change.




          (a) The Company has heretofore furnished to the Lenders (i) the consolidated balance sheet and
statements of earnings, stockholders equity and cash flows of the Company (x) as of March 31, 2007
and March 31, 2006 and for each of the three fiscal years ended March 31, 2007 reported on by
Deloitte & Touche LLP, independent public accountants, and (y) as of, and for the fiscal quarters
and six months ended, June 30, 2007 and June 30, 2006, certified by its chief financial officer
which financial statements present fairly, in all material respects, the consolidated financial
position and results of operations and cash flows of the Company as of such dates and for such
periods in accordance with GAAP.




          (b) The Company has heretofore furnished to the Lenders the combined balance sheets,
statements of income and statements of cash flows of the Merck Generics Group as of December 31,
2006 and December 31, 2005 and for the three fiscal years ended December 31, 2006 reported on by
KPMG Deutsche Treuhand-Gesellschaft, independent public accountants, and the combined balance
sheets, statements of income and statements of cash




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flows of the Merck Generics Group as of, and for the six months ended, June 30, 2007 and June 30, 2006 which financial statements present
fairly, in all material respects, the financial position and results of operations and cash flows
of the Merck Generics Group as of such dates and for such periods in accordance with International
Financial Reporting Standards as adopted by the European Union.




          (c) Since March 31, 2007, there has been no material adverse change in the business, assets,
properties or financial condition of the Company and its Subsidiaries, taken as a whole.




          SECTION 3.05. Properties.




          (a) Each Loan Party has title to, or valid leasehold interests in, all its material real and
personal property material to its business, except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize such properties for
their intended purposes and except where the failure to have such title or interest could not
reasonably be expected to have a Material Adverse Effect. There are no Liens on any of the real or
personal properties of the Company or any Subsidiary except for Liens permitted by Section 6.02.
No Mortgage encumbers improved real property that is located in an area that has been identified by
the Secretary of Housing and Urban Development as an area having special flood hazards within the
meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act
has been obtained in accordance with Section 5.05.




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




          SECTION 3.06. Litigation and Environmental Matters.




          (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of any Borrower, threatened against or affecting the
Company or any of its Subsidiaries as to which there is a reasonable possibility of an adverse
determination and that could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect (other than the Disclosed Matters). There are no labor controversies
pending against or, to the knowledge of the Company, threatened against or affecting the Company or
any of its Subsidiaries which could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.




          (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any of its Subsidiaries (i) has failed to comply with any
applicable Environmental Law or to obtain, maintain or comply with any permit, license or other
approval required under any Environmental Law, (ii) has become subject to any





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Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.




          SECTION 3.07. Compliance with Laws and Agreements. Each of the Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all agreements and other
instruments (excluding agreements governing Indebtedness) binding upon it or its property, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.




          SECTION 3.08. Investment Company Status. Neither the Company nor any of its Subsidiaries is required to register as an “investment
company” as defined in the Investment Company Act of 1940.




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




          SECTION 3.10. Solvency. On the Effective Date after giving effect to the Transactions, the Company and its
Subsidiaries, on a consolidated basis, are Solvent.




          SECTION 3.11. Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (a) there are no strikes or other labor disputes against the Company or any Subsidiary
pending or, to the knowledge of the Company, threatened; (b) hours worked by and payment made to
employees of the Company and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Laws dealing with such matters; and (c) all payments due from
the Company and its Subsidiaries on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of the relevant party. The consummation of the Transaction
will not give rise to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which the Company or any Subsidiary is bound, except
as could not reasonably be expected to have a Material Adverse Effect.




          SECTION 3.12. Disclosure. Neither the Information Memorandum nor any of the other reports, financial statements,
certificates or other written information (excluding any financial projections or pro forma
financial information) furnished by or on behalf of the Company to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished), when taken as a whole and when taken together with
the Company’s SEC filings at such time, contains as of the date of such statement, information,
document or certificate was so furnished 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. The projections and pro forma financial information
contained in the materials referenced





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above have been prepared in good faith based upon assumptions believed by management of the Company to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial information may
differ from the projected results set forth therein by a material amount.




          SECTION 3.13. Federal Reserve Regulations. No part of the proceeds of any Loan have been used or will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.




          SECTION 3.14. Security Interests. The provisions of each Collateral Document are effective to create legal and valid Liens on
all the Collateral in respect of which and to the extent such Collateral Document purports to
create Liens in favor of the Administrative Agent, for the benefit of the Secured Parties or the
Foreign Secured Parties, as applicable; and upon the proper filing of UCC financing statements, the
proper filing of Mortgages with respect to Material Real Properties and the taking of all other
actions to be taken pursuant to the terms of the Collateral Documents, such Liens constitute
perfected and continuing Liens on the Collateral, securing the Obligations, enforceable against the
applicable Loan Party and all third parties to the extent required by the Collateral Documents.




ARTICLE IV




Conditions




          SECTION 4.01. Initial Credit Events. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of
Credit hereunder on the Effective Date shall be subject to each of the following conditions being
satisfied (or waived in accordance with Section 9.02) on or prior to the Effective Date:





     (a) The Administrative Agent (or its counsel) shall have received from (i) each party
hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B)
written evidence reasonably satisfactory to the Administrative Agent (which may include
telecopy or electronic mail transmission in accordance with Section 9.01(b) of a signed
signature page of this Agreement) that such party has signed a counterpart of this
Agreement.




     (b) The Administrative Agent (or its counsel) shall have received from the Company and
each initial U.S. Guarantor either (A) a counterpart of the U.S. Guarantee and Security
Agreement signed on behalf of such U.S. Loan Party or (B) written evidence reasonably
satisfactory to the Administrative Agent (which may include telecopy or electronic mail
transmission in accordance with Section 9.01(b) of a signed signature page of the U.S.
Guarantee and Security Agreement) that such party has signed a counterpart of the U.S.
Guarantee and Security Agreement, together with, except as set forth on Schedule
1.01B:




     (i) a duly completed U.S. Perfection Certificate signed by the Company;




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     (ii) Uniform Commercial Code financing statements naming each U.S. Loan Party
as debtor and the Administrative Agent as secured party in appropriate form for
filing in the jurisdiction of incorporation or formation of each such U.S. Loan
Party;




     (iii) certificates representing all certificated Equity Interests owned
directly by any U.S. Loan Party to the extent pledged (and required to be delivered)
under the U.S. Guarantee and Security Agreement together with stock powers executed
in blank;




     (iv) all notes, chattel paper and instruments owned by any U.S. Loan Party to
the extent pledged (and required to be delivered) pursuant to the U.S. Guarantee and
Security Agreement duly endorsed in blank or with appropriate instruments of
transfer;




     (v) short form security agreements in appropriate form for filing with the
United States Patent & Trademark Office and the United States Copyright Office, as
appropriate, with respect to the intellectual property of the U.S. Loan Parties
registered with such offices and listed in the U.S. Perfection Certificate and
constituting Collateral.




     (c) The Administrative Agent (or its counsel) shall have received from the Euro
Borrower a counterpart of the documents listed on Exhibit E under the heading
“Foreign Security Documents” signed on behalf of the Euro Borrower or (B) written evidence
reasonably satisfactory to the Administrative Agent (which may include telecopy or
electronic mail transmission in accordance with Section 9.01(b) of a signed signature page
of any such document) that such party has signed a counterpart of such documents, together
with all documents required to be delivered thereunder on or prior to the Effective Date.




     (d) Substantially concurrently with initial borrowings hereunder, the Acquisition shall
have closed in all material respects in accordance with the terms of the Acquisition
Agreement and the Administrative Agent shall have received a certified copy of the
Acquisition Agreement, the material provisions of which shall not have been waived or
amended (other than such waivers or amendments as are not, taken as a whole, materially
adverse to the Lenders) without consent of the Arrangers, which consent shall not be
unreasonably withheld, conditioned or delayed, together with all material agreements,
instruments and other documents delivered in connection therewith as the Administrative
Agent shall reasonably request, including certification by a President, a Vice President or
a Financial Officer of the Company that such documents are in full force and effect as of
the Effective Date and that, to the knowledge of such officer, there has not been such a
waiver of any conditions to the obligations of the Company thereunder to consummate the
Acquisition.




     (e) The Administrative Agent shall have received the executed legal opinions of
Cravath, Swaine & Moore LLP, special New York counsel to the Company substantially in the
form of Exhibit B-1 and Kristin Kolesar, Esq. and Paul Jeges, Esq., corporate



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counsels to the Company substantially in the form of Exhibit B-2, and
from local counsel to the Company and the Guarantors in West Virginia and Vermont in form
reasonably satisfactory to the Administrative Agent. The Company hereby requests such
counsel to deliver such opinion.




     (f) The Administrative Agent shall have received such customary closing documents and
certificates as the Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing of the initial Loan Parties, the authorization
of the Transactions and any other legal matters relating to such Loan Parties, the Loan
Documents or the Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel and as further described in the list of closing
documents attached as Exhibit E.




     (g) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the Company,
confirming that the Specified Representations are true and correct on the Effective Date.




     (h) The Administrative Agent shall have received evidence reasonably satisfactory to it
that substantially concurrently with the making of the initial Loans hereunder, all
Indebtedness for borrowed money of the Company and its Subsidiaries (other than Indebtedness
permitted by Section 6.01) and all other amounts payable hereunder have been paid in full,
all commitments to extend credit thereunder shall have terminated, and all Liens securing
obligations thereunder shall have been released.




     (i) The Administrative Agent shall have received a certificate attesting to the
Solvency of the Company and its Subsidiaries (taken as a whole) on the Effective Date after
giving effect to the Transactions, from a Financial Officer of the Company.




     (j) The Administrative Agent shall have received copies of a recent Lien and judgment
search in each jurisdiction reasonably requested by the Administrative Agent with respect to
the Loan Parties.




     (k) The Lenders shall have received on or prior to the Effective Date all documentation
and other information reasonably requested in writing by them at least five business days
prior to the Effective Date in order to allow the Lenders to comply with the USA PATRIOT
Act.




     (l) The Administrative Agent and the Arrangers shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be
reimbursed or paid by the Company hereunder.



          The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.





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          SECTION 4.02. Subsequent Credit Events. The obligation of each Lender to make a Loan on the occasion of any Borrowing (but not a
conversion or continuation of Loans), and of the Issuing Banks to issue, amend, renew or extend any Letter of Credit, in each case,
following the Effective Date (but not the initial Loans made on the Effective Date) is subject to
the satisfaction of the following conditions:





     (a) Subject to the last paragraph of this Section 4.02, the representations and
warranties of the Borrowers set forth in this Agreement and the other Loan Documents shall
be true and correct in all material respects on and as of the date of such Borrowing or the
date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable,
except where any representation and warranty is expressly made as of a specific earlier
date, such representation and warranty shall be true in all material respects as of any such
earlier date.




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


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section 4.02.




          Notwithstanding the foregoing, prior to the 90th day following the Effective Date, the
conditions set forth in this Section 4.02 shall be deemed to have been satisfied so long as the
failure of any such condition to be satisfied is caused solely by a Specified Target Default.




ARTICLE V




Affirmative Covenants




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




          SECTION 5.01. Financial Statements and Other Information. The Company will furnish to the Administrative Agent (who shall promptly furnish a copy to
each Lender):





     (a) as soon as available, but in any event within ninety (90) days after the end of
each fiscal year of the Company, the audited consolidated balance sheet of the Company and
its Consolidated Subsidiaries and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or
other independent public accountants of recognized national standing (without a “going
concern” or like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated finan-



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cial statements present fairly in all material respects the financial position and results of operations of the
Company and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP;




     (b) as soon as available, but in any event within forty-five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of the Company, the unaudited
consolidated balance sheet of the Company and its Consolidated Subsidiaries and related
statements of operations and cash flows as of the end of and for such fiscal quarter and the
then elapsed portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the balance sheet, as
of the end of) the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial position and results of operations
of the Company and its Consolidated Subsidiaries on a consolidated basis in accordance with
GAAP, subject to normal year-end audit adjustments and the absence of footnotes;




     (c) concurrently with any delivery of financial statements under clause (a) or except
in the case of subclause (ii) below, (b) above, (i) a certificate substantially in the form
of Exhibit H executed by a Financial Officer of the Company (x) certifying as to
whether, to the knowledge of such Financial Officer after reasonable inquiry, a Default has
occurred and is continuing and, if so, specifying the details thereof and any action taken
or proposed to be taken with respect thereto; (y) in the case of any such certificate
delivered for any fiscal period ending on or after June 30, 2008, setting forth reasonably
detailed calculations demonstrating compliance with Section 6.09 and (z) setting forth a
reasonably detailed calculation of the Consolidated Leverage Ratio as of the last day of the
period covered by such financial statements; (ii) (x) a U.S. Perfection Certificate
Supplement or a certificate of a Financial Officer of the Company stating that there has
been no change in the information set forth in the last U.S. Perfection Certificate or U.S.
Perfection Certificate Supplement, as the case may be, most recently delivered to the
Administrative Agent, (y) a description of any assets acquired by any Foreign Loan Party
which are not subject to a security interest in favor of the Administrative Agent and which
have a fair market value in excess of $15,000,000 and (z) a certificate of a Financial
Officer stating that the Company has complied with Section 5.09; and (iii) to the extent the
applicable financial statements include the results of any Permitted Joint Venture, separate
financial statements or consolidating information for the Company and its Subsidiaries (but
excluding any such Permitted Joint Venture) in form reasonably satisfactory to the
Administrative Agent;




     (d) concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such financial
statements of any failure to comply with Section 6.09 to the extent the Company was required
to comply with such Section during such fiscal year (which certificate may be limited to the
extent required by accounting rules or guidelines or by such accounting firm’s professional
standards and customs of the profession);



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     (e) promptly after the same become publicly available, copies of all annual, quarterly
and current reports and proxy statements filed by the Company or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority succeeding to any or all
of the functions of said Commission; and




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


Financial statements and other information required to be delivered pursuant to Sections 5.01(a),
5.01(b) and 5.01(e) shall be deemed to have been delivered if such statements and information shall
have been posted by the Company on its website or shall have been posted on Intralinks or similar
site to which all of the Lenders have been granted access or are publicly available on the SEC’s
website pursuant to the EDGAR system.




          The Borrowers acknowledge that (a) the Administrative Agent will make available information to
the Lenders by posting such information on IntraLinks or similar electronic means 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 Company, its subsidiaries or its securities)
(each, a “Public Lender”). The Company agrees to identify that portion of the information
to be provided to Public Lenders hereunder as “PUBLIC” and that such information will not contain
material non-public information relating to the Company or its Subsidiaries (or any of their
securities).




          SECTION 5.02. Notices of Material Events. The Company will furnish to the Administrative Agent (for prompt notification to each
Lender) prompt (but in any event within five (5) Business Days) written notice after any Financial
Officer of the Company obtains knowledge of the following:





     (a) the occurrence of any continuing Default;




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Company or any Affiliate
thereof that could reasonably be expected to result in a Material Adverse Effect; and




     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect.


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




          SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each of its Material Subsidiaries to, do or cause to be
done all things necessary to preserve,





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renew and keep in full force and effect (i) its legal existence, and (ii) the rights, licenses, permits, privileges and franchises material to the
conduct of its business, except, in the case of the preceding clause (ii), to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse Effect;
provided that the foregoing shall not prohibit any transaction permitted under Section 6.03
or 6.11.




          SECTION 5.04. Payment of Obligations. The Company will, and will cause each of its Subsidiaries to, pay its obligations (other
than Indebtedness), including Tax liabilities, before the same shall become delinquent or in
default, except where (a) (i) the validity or amount thereof is being contested in good faith by
appropriate proceedings and (ii) the Company or such Subsidiary has set aside on its books reserves
with respect thereto to the extent required by GAAP or (b) the failure to make payment could not
reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.




          SECTION 5.05. Maintenance of Properties; Insurance. The Company will, and will cause each of its Material Subsidiaries to, (a) keep and
maintain all Property material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted and casualty or condemnation excepted, except if the failure to do
so could not reasonably be expected to have a Material Adverse Effect, and (b) maintain, with
financially sound and reputable insurance companies or through self-insurance, insurance in such
amounts and against such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations. All property and liability
insurance as reasonably requested by the Administrative Agent shall name the Administrative Agent
as mortgagee (in the case of property insurance), if applicable, or additional insured on behalf of
the Secured Parties (in the case of liability insurance) or loss payee (in the case of property
insurance), as applicable. With respect to each Mortgaged Property, obtain flood insurance in such
total amount as the Administrative Agent may from time to time reasonably require, if at any time
the area in which any improvements located on any Mortgaged Property is designated a “flood hazard
area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), and otherwise comply with the National Flood Insurance Program as set forth in
the Flood Disaster Protection Act of 1973, as amended from time to time.




          SECTION 5.06. Inspection Rights. The Company will, and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or, during the continuance of an Event of Default, any
Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and condition with its
officers and use commercially reasonable efforts to make its independent accountants available to
discuss the affairs, finances and condition of the Borrowers, all at such reasonable times and as
often as reasonably requested and in all cases subject to applicable Law and the terms of
applicable confidentiality agreements; provided that (i) the Lenders will conduct such
requests for visits and inspections through the Administrative Agent and (ii) unless an Event of
Default has occurred and is continuing, such visits and inspections can occur no more frequently
than once per year. The Administrative Agent and the Lenders shall give the Company the
opportunity to participate in any discussions with the Company’s independent accountants.




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          SECTION 5.07. Compliance with Laws; Compliance with Agreements. The Company will, and will cause each of its Subsidiaries to, (i) comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or its property
(including without limitation Environmental Laws) and (ii) perform in all material respects its
obligations under material agreements (other than in respect of Indebtedness) to which it is a
party, in each case except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Term Loans will be used to finance the Transaction and the proceeds of
Loans and other credit extensions made following the Effective Date only to finance the working
capital needs, and for general corporate purposes (including refinancing of existing Indebtedness,
acquisitions and other investments), of the Company and its Subsidiaries. No part of the proceeds
of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.




          SECTION 5.09. Further Assurances; Additional Security and Guarantees.




          (a) The Company shall, and shall cause each applicable Subsidiary to, at the Company’s
expense, comply with the requirements of the Collateral Documents and take all action reasonably
requested by the Administrative Agent to carry out more effectively the purposes of the Collateral
Documents (including, without limitation, any such action reasonably requested by the
Administrative Agent in connection with the delivery by the Company of any U.S. Perfection
Certificate Supplement or information with respect to assets acquired by Foreign Loan Parties) or
to grant a security interest in the assets of each Foreign Loan Party to substantially the same
extent as is the case for the U.S. Loan Parties under the Mortgages and the U.S. Guarantee and
Security Agreement (subject to clause (d) below).




          (b) Upon the formation or acquisition of any Specified Domestic Subsidiary or Specified
Foreign Subsidiary by the Company or any Subsidiary (and, in the case of clause (E) below, upon the
Acquisition of any Material Real Property by any Loan Party):





     (i) within thirty (30) days (ninety (90) days in the case of a Specified Foreign
Subsidiary or in the case of clause (E)(ii) below) after such formation or acquisition or
such longer period as may be reasonably acceptable to the Administrative Agent:




     (A) cause any such U.S. Subsidiary to deliver a U.S. Perfection Certificate
Supplement to the Administrative Agent;




     (B) deliver all certificated Equity Interests of such Subsidiary held by any
Loan Party that are Collateral pursuant to the Collateral Documents to the
Administrative Agent together with appropriately completed stock powers or other
instruments of transfer executed in blank by a duly authorized officer of such Loan
Party and all intercompany notes owing from such Subsidiary to any Loan Party
required to be delivered pursuant to the Collateral Documents together with
instruments of transfer executed and delivered in blank by a duly authorized officer
of such Loan Party;



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     (C) cause each such Specified Domestic Subsidiary to execute a supplement to
the U.S. Guarantee and Security Agreement and take all actions reasonably requested
by the Administrative Agent in order to cause the Lien created by the U.S. Guarantee
and Security Agreement to be duly perfected to the extent required by such agreement
in accordance with all applicable requirements of Law, including the filing of
financing statements in such jurisdictions as may be reasonably requested by the
Administrative Agent;




     (D) cause each such Specified Foreign Subsidiary to execute a supplement to the
Foreign Guarantee and Security Agreement and to take the actions reasonably
requested by the Administrative Agent in order to cause the Lien created by the
Foreign Guarantee and Security Agreement to be enforceable against such Specified
Foreign Subsidiaries and third parties in accordance with all applicable
requirements of Law, including registering such security interest in such
jurisdictions as may be reasonably requested by the Administrative Agent;




     (E) cause any such Specified Domestic Subsidiary or the applicable Loan Party
to deliver to the Administrative Agent to the extent reasonably requested by the
Administrative Agent (i) counterparts of a Mortgage with respect to any Material
Real Property, duly executed and delivered by the record owner of such property,
(ii) a policy or policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid Lien on the
property described therein, together with such endorsements as the Administrative
Agent may reasonably request and in an amount reasonably satisfactory to the
Administrative Agent and (iii) such existing surveys, if any, UCC-1 fixture filings,
existing appraisals, if any, legal opinions, flood certificates and other documents
as the Administrative Agent may reasonably request with respect to any such Material
Real Property; and




     (F) if requested by the Administrative Agent, deliver a customary opinion of
counsel to the Company with respect to the guarantee and security provided by such
Specified Domestic Subsidiary or Specified Foreign Subsidiary.



          (c) The Company shall satisfy the requirements set forth on Schedule 5.09(c) on or
prior to the dates set forth on such schedule (or such later dates as shall be reasonably
acceptable to the Administrative Agent).




          (d) Notwithstanding the foregoing, (i) no Foreign Subsidiary shall be required to comply with
any provision of this Section 5.09 to the extent complying with such provision (x) could reasonably
be expected to result in adverse tax consequences (as determined in good faith by the Company and
notified to the Administrative Agent), (y) is prohibited or limited by Law (including financial
assistance rules) or (z) would result in a breach of the fiduciary duties of the directors of such
Foreign Subsidiary or could reasonably be expected to result in personal or criminal liability of
any director, in each case, as determined in good faith by the Company and notified to the
Administrative Agent, and (ii) the Company and its Subsidiaries shall not be required to comply
with the provisions of this Section 5.09 to the extent the cost of providing any Guarantee or
obtaining the Liens, or perfection thereof, required by this Section are, in the




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reasonable determination of the Administrative Agent (in consultation with the Company), excessive in relation
to the value to be afforded to the Lenders thereby.




ARTICLE VI




Negative Covenants




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




          SECTION 6.01. Indebtedness. The Company will not create, incur, assume or permit to exist, and will not permit any
Subsidiary to create, incur, assume or permit to exist, any Indebtedness, except:





     (a) Indebtedness created under the Loan Documents;




     (b) Indebtedness existing on the Effective Date and set forth in Schedule 6.01
or that could be incurred on the date hereof pursuant to commitments set forth in
Schedule 6.01 and Permitted Refinancing Indebtedness in respect of Indebtedness
permitted by this clause (b);




     (c) Indebtedness of (i) any U.S. Loan Party to any other U.S. Loan Party, (ii) any
Foreign Loan Party to any Loan Party, (iii) any Subsidiary that is not a Loan Party to the
Company or any other Subsidiary, (iv) any Foreign Loan Party to any Subsidiary that is not a
Loan Party and (v) any U.S. Loan Party to (x) any Foreign Loan Party or (y) any Subsidiary
that is not a Loan Party; provided all such Indebtedness permitted under this
subclause (iv) or (v) shall be subordinated to the Obligations of the issuer of such
Indebtedness;




     (d) Guarantees of Indebtedness of the Company or any other Subsidiary, all to the
extent permitted by Section 6.05;




     (e) Indebtedness incurred to finance the acquisition, construction, repair, replacement
or improvement of any fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancing
Indebtedness in respect of Indebtedness permitted by this clause (e); provided that
(i) such Indebtedness (other than Permitted Refinancing Indebtedness permitted above in this
clause (e)) is incurred prior to or within two hundred seventy (270) days after such
acquisition or the completion of such construction, repair, replacement or improvement and
(ii) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not
exceed $75,000,000 at any time outstanding;



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     (f) Indebtedness in respect of letters of credit (including trade letters of credit),
bank guarantees or similar instruments issued or incurred in the ordinary course of
business, including in respect of card obligations or any overdraft and related liabilities
arising from treasury, depository and cash management services or any automated clearing
house transfers, workers compensation claims, health, disability or other employee benefits
or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers
compensation claims;




     (g) Indebtedness incurred pursuant to Permitted Receivables Facilities;
provided that the Attributable Receivables Indebtedness thereunder shall not exceed
an aggregate amount of $300,000,000 at any time outstanding;




     (h) Indebtedness of Foreign Subsidiaries and Subsidiaries which are not Guarantors,
provided that Indebtedness shall be permitted to be incurred pursuant to this clause
(h) only if at the time such Indebtedness is incurred (i) the aggregate principal amount of
Indebtedness outstanding pursuant to this clause (h) at such time (including such
Indebtedness) would not exceed the greater of (x) $200,000,000 and (y) the Equivalent
Percentage of Consolidated Total Assets (as of the most recently ended fiscal quarter of the
Company for which financial statements have been delivered pursuant to Section 5.01(a) or
(b)) or (ii )(A) on a Pro Forma Basis the Consolidated Leverage Ratio as of the last day of
the most recent fiscal quarter for which financial statements have been delivered pursuant
to Section 5.01(a) or (b) would not exceed 4.5 to 1.0 and (B) the aggregate principal amount
of Indebtedness outstanding pursuant to this clause (h) at such time (including such
Indebtedness) would not exceed the greater of (1) $400,000,000 and (2) the Equivalent
Percentage of Consolidated Total Assets (as of the most recently ended fiscal quarter of the
Company for which financial statements have been delivered pursuant to Section 5.01(a) or
(b));




     (i) Indebtedness under Swap Agreements entered into in the ordinary course of business
and not for speculative purposes;




     (j) Indebtedness in respect of bid, performance, surety, stay, customs, appeal or
replevin bonds or performance and completion guarantees and similar obligations issued or
incurred in the ordinary course of business, including guarantees or obligations of any
Subsidiary with respect to letters of credit, bank guarantees or similar instruments
supporting such obligation, in each case, not in connection with Indebtedness for money
borrowed;




     (k) Indebtedness in respect of judgments, decrees, attachments or awards that do not
constitute an Event of Default under clause (k) of Article VII;




     (l) Indebtedness consisting of bona fide purchase price adjustments, earn-outs,
indemnification obligations, obligations under deferred compensation or similar arrangements
and similar items incurred in connection with the Transaction or other acquisitions and
asset sales not prohibited by Section 6.05 or 6.11;



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     (m) (i) Indebtedness of a Person existing at the time such Person becomes a Subsidiary
and not created in contemplation thereof; provided that, after giving effect to the
acquisition of such Person, on a Pro Forma Basis, the Consolidated Leverage Ratio as of the
last day of the most recent fiscal year or fiscal quarter for which financial statements
have been delivered pursuant to Section 5.01(a) or 5.01(b) would not exceed 6.0 to 1.0 and (ii) any Permitted Refinancing Indebtedness in respect of Indebtedness
permitted by this clause (m);




     (n) Indebtedness in an aggregate amount not to exceed the foreign currency equivalent
of $75,000,000 in respect of letters of credit denominated in currencies other than Dollars;




     (o) Indebtedness in the form of (x) guarantees of loans and advances to officers,
directors, consultants and employees, in an aggregate amount not to exceed $10,000,000 at
any one time outstanding, and (y) reimbursements owed to officers, directors, consultants
and employees;




     (p) Indebtedness consisting of obligations to make payments to current or former
officers, directors and employees, their respective estates, spouses or former spouses with
respect to the cancellation, or to finance the purchase or redemption, of Equity Interests
of the Company until permitted by Section 6.04;




     (q) Cash Management Obligations and other Indebtedness in respect of card obligations,
netting services, overdraft protections and similar arrangements in each case in connection
with deposit accounts;




     (r) Indebtedness consisting of (x) the financing of insurance premiums with the
providers of such insurance or their affiliates or (y) take-or-pay obligations contained in
supply arrangements, in each case, in the ordinary course of business;




     (s) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed
the face amount of such Letter of Credit;




     (t) Foreign Jurisdiction Deposits;




     (u) (x) additional Indebtedness of any of the U.S. Loan Parties so long as no Event of
Default has occurred and is continuing or would arise after giving effect thereto and on a
Pro Forma Basis the Consolidated Leverage Ratio as of the last day of the most recent fiscal
quarter for which financial statements have been delivered pursuant to Section 5.01(a) or
(b) prior to the incurrence of such Indebtedness would not exceed 6.0 to 1.0 and (y) any
Permitted Refinancing Indebtedness in respect of Indebtedness permitted by this clause (u);




     (v) other Indebtedness of the U.S. Loan Parties; provided that Indebtedness
shall be permitted to be incurred pursuant to this clause (v) only if at the time such
Indebtedness is incurred the aggregate principal amount of Indebtedness outstanding pursuant
to this clause (v) at such time (including such Indebtedness) would not exceed the



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greater of (x) $250,000,000 and (y) the Equivalent Percentage of Consolidated Total Assets (as of
the most recently ended fiscal quarter of the Company for which financial statements have
been delivered pursuant to Section 5.01(a) or (b));




          (w) Indebtedness in respect of Investments permitted by Section 6.05(t); and




          (x) all premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in clauses (a)
through (v) above.



          SECTION 6.02. Liens. The Company will not, and will not permit any Subsidiary to, create, incur, assume or
permit to exist any Lien on any Property now owned or hereafter acquired by it, except:





     (a) Permitted Encumbrances;




     (b) Liens pursuant to any Loan Document;




     (c) any Lien on any Property of the Company or any Subsidiary existing on the Effective
Date and set forth in Schedule 6.02 and any modifications, replacements, renewals or
extensions thereof; provided that (i) such Lien shall not apply to any other
Property of the Company or any Subsidiary other than (A) improvements and after-acquired
Property that is affixed or incorporated into the Property covered by such Lien or financed
by Indebtedness permitted under Section 6.01, and (B) proceeds and products thereof, and
(ii) such Lien shall secure only those obligations which it secures on the date hereof and
any Permitted Refinancing Indebtedness in respect thereof;




     (d) any Lien existing on any Property prior to the acquisition thereof by the Company
or any Subsidiary or existing on any Property of any Person that becomes a Subsidiary after
the date hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any
other Property of the Company or any other Subsidiary (other than the proceeds or products
thereof and other than improvements and after-acquired property that is affixed or
incorporated into the Property covered by such Lien) and (iii) such Lien shall secure only
those obligations which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be and Permitted Refinancing Indebtedness in respect
thereof;




     (e) Liens on fixed or capital assets acquired, constructed, repaired, replaced or
improved by the Company or any Subsidiary; provided that (i) such security interests
secure Indebtedness permitted by clause (e) of Section 6.01, (ii) such security interests
and the Indebtedness secured thereby (other than Permitted Refinancing Indebtedness
permitted by clause (e) of Section 6.01) are incurred prior to or within two hundred seventy
(270) days after such acquisition or the completion of such construction, repair or
replacement or improvement, (iii) the Indebtedness secured thereby does not exceed the cost
of acquiring, constructing or improving such fixed or capital assets and (iv) such se-



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curity interests shall not apply to any other Property of the Company or any Subsidiary except for
accessions to such Property, Property financed by such Indebtedness and the proceeds and
products thereof; provided further that individual financings of equipment
provided by one lender may be cross-collateralized to other financings of equipment provided
by such lender;




     (f) rights of setoff and similar arrangements and Liens in respect of Cash Management
Obligations and in favor of depository and securities intermediaries to secure obligations
owed in respect of card obligations or any overdraft and related liabilities arising from
treasury, depository and cash management services or any automated clearing house transfers
of funds and fees and similar amounts related to bank accounts or securities accounts
(including Liens securing letters of credit, bank guarantees or similar instruments
supporting any of the foregoing);




     (g) Liens on Receivables and Permitted Receivables Facility Assets securing
Indebtedness arising under Permitted Receivables Facilities;




     (h) Liens on assets of a Subsidiary which is not a Loan Party securing Indebtedness of
such Subsidiary pursuant to Section 6.01(h);




     (i) Liens (i) on “earnest money” or similar deposits or other cash advances in
connection with acquisitions permitted by Section 6.05 or (ii) consisting of an agreement to
Dispose of any Property in a Disposition permitted under Section 6.11;




     (j) Liens on cash and cash equivalents securing Indebtedness permitted by Section
6.01(n);




     (k) Liens on Property of Subsidiaries that are not Loan Parties in connection with
Indebtedness permitted by Section 6.01(h) or (n);




     (l) leases, licenses, subleases or sublicenses granted to others in the ordinary course
of business which do not (i) interfere in any material respect with the business of the
Company or any Subsidiary or (ii) secure any Indebtedness;




     (m) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary
course of business;




     (n) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection and (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary course of
business, including Liens encumbering reasonable customary initial deposits and margin
deposits;




     (o) Liens on property or Equity Interests (i) of any Foreign Subsidiary that is not a
Loan Party and (ii) that do not constitute Collateral, which Liens secure Indebtedness of
such Foreign Subsidiary permitted under Section 6.01;



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     (p) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Company or any Subsidiary in the ordinary
course of business permitted by this Agreement;




     (q) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 6.05;




     (r) rights of setoff relating to purchase orders and other agreements entered into with
customers of the Company or any Subsidiary in the ordinary course of business;




     (s) ground leases in respect of real property on which facilities owned or leased by
the Company or any of its Subsidiaries are located and other Liens affecting the interest of
any landlord (and any underlying landlord) of any real property leased by the Company or any
Subsidiary;




     (t) Liens on equipment owned by the Company or any Subsidiary and located on the
premises of any supplier and used in the ordinary course of business and not securing
Indebtedness;




     (u) any restriction or encumbrance with respect to the pledge or transfer of the Equity
Interests of a Permitted Joint Venture;




     (v) Liens not otherwise permitted by this Section 6.02, provided that a Lien
shall be permitted to be incurred pursuant to this clause (v) only if at the time such Lien
is incurred the aggregate principal amount of the obligations secured at such time
(including such Lien) by Liens outstanding pursuant to this clause (v) would not exceed the
greater of (x) $100,000,000 and (y) the Equivalent Percentage of Consolidated Total Assets
(as of the most recently ended fiscal quarter of the Company for which financial statements
have been delivered pursuant to Section 5.01(a) or (b)); and




     (w) Liens on any Property of (i) any U.S. Loan Party in favor of any other U.S. Loan
Party, (ii) any Foreign Loan Party in favor of any Loan Party and (iii) any Subsidiary that
is not a Loan Party in favor of the Company or any other Subsidiary.



          SECTION 6.03. Fundamental Changes. The Company will not, and will not permit any Subsidiary to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or
dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event
of Default shall have occurred and be continuing:




     (a) any Subsidiary may be merged or consolidated with or into any Person and any
Subsidiary (other than the Euro Borrower) may be liquidated or dissolved or change its legal
form, in each case in order to consummate any Investment otherwise permitted by Section 6.05
or Disposition otherwise permitted by Section 6.11; provided that if the Euro Borrower is a
party to any such merger or consolidation transaction, such Borrower shall be the surviving
Person in such merger or consolidation;



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     (b) any Loan Party may merge or consolidate with any other Person in a transaction in
which such Loan Party is the surviving Person in such merger or consolidation; and




     (c) the Company may be consolidated with or merged into any Person; provided
that any Investment in connection therewith is otherwise permitted by Section 6.05;
and provided further that, simultaneously with such
transaction, (x) the Person formed by such consolidation or into which the Company is merged
shall expressly assume all obligations of the Company under the Loan Documents, (y) the Person formed
by such consolidation or into which the Company is merged shall be a corporation organized
under the laws of a State in the United States and shall take all actions as may be required
to preserve the enforceability of the Loan Documents and validity and perfection of the
Liens of the Collateral Documents and (z) the Company shall have delivered to the
Administrative Agent an officer’s certificate and an opinion of counsel, each stating that
such merger or consolidation and such supplement to this Agreement or any Collateral
Document comply with this Agreement.



          SECTION 6.04. Restricted Payments. The Company will not, and will not permit any of its Subsidiaries to, declare or make, or
agree to pay or make, directly or indirectly, any Restricted Payment, except (a) the Company or any
Subsidiary may declare and pay dividends or other distributions with respect to its Equity
Interests payable solely in additional shares of its Qualified Equity Interests or options to
purchase Qualified Equity Interests; (b) Subsidiaries may declare and make Restricted Payments
ratably with respect to their Equity Interests; (c) the Company may make Restricted Payments
pursuant to and in accordance with stock option plans or other benefit plans for present or former
officers, directors, consultants or employees of the Company and its Subsidiaries in an amount not
to exceed $20,000,000 in any fiscal year (with any unused amount of such base amount available for
use in the next succeeding fiscal year); (d) so long as, on a Pro Forma Basis, the Consolidated
Leverage Ratio as of the last day of the most recent fiscal quarter for which financial statements
have been delivered pursuant to Section 5.01(a) or (b) would not exceed 6.0 to 1.0, the Company may
pay cash dividends on its common stock in an amount not to exceed $0.06 per share in any fiscal
quarter (as adjusted so that the aggregate amount payable pursuant to this clause (d) is not
increased or decreased solely as a result of any stock split, stock dividend or similar
reclassification) plus the payment of pro rata dividends on shares subject to issuance pursuant to
outstanding options for each fiscal quarter thereafter; provided that no Restricted
Payments shall permitted under this clause (d) until the earlier of (x) the date that is the
one-year anniversary of the Effective Date and (y) the date the Interim Loans are refinanced; (e)
Restricted Payments made to consummate the Transaction; (f) to the extent constituting Restricted
Payments, the Company and the Subsidiaries may enter into and consummate transactions expressly
permitted by any provision of Section 6.03 or 6.07 (other than Section 6.07(a)); (g) repurchases of
Equity Interests in the Company or any Subsidiary deemed to occur upon exercise of stock options or
warrants if such Equity Interests represent a portion of the exercise price of such options or
warrants; (h) the Company may make other Restricted Payments in an aggregate amount not to exceed
the sum of (x) $50,000,000 less the aggregate principal amount of Specified Indebtedness
repurchased or prepaid pursuant to Section 6.06(a)(iv)(A), plus (y) the Available Amount;
provided that the Company may only make the Restricted Payments permitted under the
foregoing clause (h) so long as (i) no Event of De-




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fault has occurred and is continuing or would arise after giving effect thereto and (ii) on a Pro Forma Basis the Consolidated Leverage Ratio as
of the last day of the most recent fiscal quarter for which financial statements have been
delivered pursuant to Section 5.01(a) or (b) would not exceed 6.0 to 1.0; and (i) so long as no
Event of Default has occurred and is continuing, regularly scheduled cash dividends on Refinancing
Preferred Stock.




          SECTION 6.05. Investments. The Company will not, and will not allow any of its Subsidiaries to make or hold any
Investments, except:





     (a) Investments by the Company or a Subsidiary in cash and Cash Equivalents;




     (b) loans or advances to officers, directors, consultants and employees of the Company
and the Subsidiaries (i) for reasonable and customary business-related travel,
entertainment, relocation and analogous ordinary business purposes, (ii) in connection with
such Person’s purchase of Equity Interests of the Company, provided that the amount
of such loans and advances shall be contributed to the Company in cash as common equity, and
(iii) for purposes not described in the foregoing subclauses (i) and (ii), in an aggregate
principal amount outstanding not to exceed $10,000,000;




     (c) Investments by (i) any U.S. Loan Party in any U.S. Loan Party, (ii) any Foreign
Loan Party in any Loan Party, (iii) any Subsidiary that is not a Loan Party in the Company
or any Subsidiary, (iv) any Loan Party in any Foreign Subsidiary consisting solely of (x)
the contribution or other Disposition of Equity Interests or Indebtedness of any other
Foreign Subsidiary held directly by the Company or such Subsidiary in exchange for
Indebtedness, Equity Interests (or additional share premium or paid in capital in respect of
Equity Interests) or a combination thereof of the Foreign Subsidiary to which such
contribution is made, (y) an exchange of Equity Interests of such Foreign Subsidiary for
Indebtedness of such Foreign Subsidiary or (z) Guarantees of Indebtedness or other monetary
obligations of Foreign Subsidiaries owing to any U.S. Loan Party, (v) any Loan Party in any
Subsidiary or in any Person that becomes a Subsidiary (or that is merged or consolidated
into a Subsidiary) as a result of such Investment, provided that an Investment shall
be permitted to be made pursuant to this subclause (v) only if at the time such Investment
is made the aggregate amount of Investments outstanding at such time (including such
Investment) pursuant to this subclause (v) (valued at cost and net of any return
representing a return of capital in respect of any such Investment) would not exceed
$500,000,000, and (vi) Investments among the Company and its Subsidiaries for purposes of
funding payments under the Loan Documents in respect of scheduled interest and amortization
payments and prepayments pursuant to Section 2.11(b) and Investments among the Company and
its Subsidiaries in the ordinary course of business for purposes of funding the working
capital and maintenance capital expenditure requirements and research and development
activities of the Company and its Subsidiaries;




     (d) (i) 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 (ii) Investments (including debt obligations and Equity Interests) received
in satisfaction or partial satisfaction thereof from financially troubled account



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debtors and other credits to suppliers in the ordinary course of business or received in connection
with the bankruptcy or reorganization of suppliers and customers or in settlement of
delinquent obligations of, or other disputes with, customers and suppliers arising in the
ordinary course of business or upon the foreclosure with respect to any secured Investment
or other transfer of title with respect to any secured Investment;




     (e) Investments resulting from the receipt of promissory notes and other non-cash
consideration in connection with any Disposition permitted by Section 6.11(c)(i), (i), (j)
or (l) or Restricted Payments permitted by Section 6.04;




     (f) (i) Investments existing or contemplated on the Effective Date and set forth on
Schedule 6.05(f) and any modification, replacement, renewal, reinvestment or
extension thereof and (ii) Investments existing on the date hereof by the Company or any
Subsidiary in the Company or any other Subsidiary and any modification, renewal or extension
thereof; provided that the amount of the original Investment is not increased except
by the terms of such Investment or as otherwise permitted by this Section 6.05;




     (g) Investments in Swap Agreements permitted under Section 6.01(i);




     (h) Permitted Acquisitions;




     (i) the Transaction;




     (j) Investments in the ordinary course of business consisting of endorsements for
collection or deposit;




     (k) any other Investment, provided that an Investment shall be permitted to be
made pursuant to this clause (k) only if at the time such Investment is made the aggregate
amount of Investments outstanding at such time (including such Investment) pursuant to this
clause (k) (valued at cost and net of any return representing a return of capital in respect
of any such Investment) would not exceed $100,000,000; provided that if at the time
of any Investment on a Pro Forma Basis the Consolidated Total Leverage Ratio as of the last
day of the most recent fiscal quarter for which financial statements have been delivered
pursuant to Section 5.01(a) or (b) would not exceed 6.0 to 1.0, then the amount available
under this clause (k) shall be $250,000,000;




     (l) any Investment; provided that the amount of such Investment (valued at
cost) does not exceed the Available Amount at the time such Investment is made;




     (m) advances of payroll payments, fees or other compensation to officers, directors,
consultants or employees, in the ordinary course of business;




     (n) Investments to the extent that payment for such Investments is made solely with
Qualified Equity Interests of the Company;




     (o) Investments held by a Subsidiary acquired after the Effective Date or of a
corporation merged into the Company or merged or consolidated with a Subsidiary in
ac-



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cordance with Section 6.03 after the Effective 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;




     (p) lease, utility and other similar deposits in the ordinary course of business;




     (q) any acquisition of the remaining Equity Interests in Matrix Laboratories Limited or
any of the Mchem Group Companies not held by the Company or any of its Subsidiaries or any
acquisition of any Subsidiary of Matrix Laboratories Limited;




     (r) Investments resulting from the creation of a Lien permitted under Section 6.02 and
Investments resulting from Dispositions permitted under Section 6.03(b) or Restricted
Payments permitted under Section 6.04;




     (s) customary Investments in connection with Permitted Receivables Facilities; and




     (t) any Investment in a Permitted Joint Venture; provided that an Investment shall be
permitted to be made pursuant to this clause (t) only if at the time such Investment is made
the aggregate amount of Investments outstanding at such time (including such Investment)
pursuant to this clause (t) (valued at cost and net of any return representing a return of
capital in respect of any such Investment) would not exceed the greater of (1) $250,000,000
and (2) the Equivalent Percentage of Consolidated Total Assets (as of the most recently
ended fiscal quarter of the Company for which financial statements have been delivered
pursuant to Section 5.01(a) or (b)).



          SECTION 6.06. Prepayments, Etc. of Indebtedness.




          (a) The Company will not, and will not permit any of its Subsidiaries to, prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it
being understood that payments of regularly scheduled interest shall be permitted) any Specified
Indebtedness or make any payment in violation of any subordination terms of any Specified
Indebtedness, except (i) refinancing of Specified Indebtedness with the Net Cash Proceeds of any
Permitted Refinancing Indebtedness in respect thereof, (ii) the conversion of any Specified
Indebtedness to Equity Interests (other than Disqualified Equity Interests) of the Company, (iii)
the prepayment of Indebtedness of the Company or any Subsidiary to the Company or any Subsidiary to
the extent permitted by the Collateral Documents, (iv) prepayments, redemptions, purchases,
defeasances and other payments in respect of Specified Indebtedness in an aggregate amount not to
exceed the sum of (A) $50,000,000 minus the amount of Restricted Payments made pursuant to Section
6.04(h)(x) plus (B) the Available Amount so long as (x) no Event of Default has occurred and is
continuing and (y) after giving effect to such prepayment, on a Pro Forma Basis the Consolidated
Leverage Ratio as of the last day of the most recent fiscal year or fiscal quarter for which
financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) would not exceed
6.0 to 1.0, (v) so long as no Event of Default has occurred and is continuing, prepayments,
redemptions, purchases or defeasances of Specified Indebtedness out of Retained Declined Proceeds
and (vi) prepayments,





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redemptions, purchases or defeasances of Specified Indebtedness out of the
net cash proceeds of a sale of Qualified Equity Interests (other than a sale to the Company or a
Subsidiary).




          (b) The Company will not, and will not permit any of its Subsidiaries to, amend, modify or
change in any manner materially adverse to the interests of the Lenders any term or condition of
any Specified Indebtedness in any manner materially adverse to the Lenders.




          SECTION 6.07. Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, sell, lease or
otherwise transfer any Property to, or purchase, lease or otherwise acquire any Property from, or
otherwise engage in any other transactions with, any of its Affiliates, except (a) at prices and on
terms and conditions substantially as favorable to the Company or such Subsidiary (in the good
faith determination of the Company) as could reasonably be obtained on an arm’s-length basis from
unrelated third parties, (b) transactions between or among the Company and its Subsidiaries and any
entity that becomes a Subsidiary as a result of such transaction not involving any other Affiliate,
(c) the payment of customary compensation and benefits and reimbursements of out-of-pocket costs
to, and the provision of indemnity on behalf of, directors, officers, consultants, employees and
members of the Boards of Directors of the Company or such Subsidiary, (d) loans and advances to
officers, directors, consultants and employees in the ordinary course of business, (e) Restricted
Payments and other payments permitted under Section 6.04 or 6.06, (f) employment, incentive,
benefit, consulting and severance arrangements entered into in the ordinary course of business with
officers, directors, consultants and employees of the Company or its Subsidiaries, (g) the
transactions pursuant to the agreements set forth in Schedule 6.07 or any amendment thereto
to the extent such an amendment is not adverse to the Lenders in any material respect, (h) the
Transaction and the payment of fees and expenses related to the Transaction, (i) the issuance of
Qualified Equity Interests of the Company and the granting of registration or other customary
rights in connection therewith, (j) the existence of, and the performance by the Company or any
Subsidiary of its obligations under the terms of, any limited liability company agreement, limited
partnership or other organizational document or securityholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which it is a party on the
Effective Date and which is set forth on Schedule 6.07, and similar agreements that it may
enter into thereafter, provided that the existence of, or the performance by the Company or
any Subsidiary of obligations under, any amendment to any such existing agreement or any such
similar agreement entered into after the Effective Date shall only be permitted by this Section
6.07(j) to the extent not more adverse to the interest of the Lenders in any material respect when
taken as a whole (in the good faith determination of the Company) than any of such documents and
agreements as in effect on the Effective Date, (k) consulting services to Permitted Joint Ventures
in the ordinary course of business and any other transactions between or among the Company, its
Subsidiaries and Permitted Joint Ventures in the ordinary course of business and (l) transactions
with landlords, customers, clients, suppliers, joint venture partners or purchasers or sellers of
goods and services, in each case in the ordinary course of business and not otherwise prohibited by
this Agreement.




          SECTION 6.08. Changes in Fiscal Year. The Company will not change its fiscal year from the basis in effect on the Effective Date;
provided, however, that the Company may, upon written notice to the Administrative
Agent, change its fiscal year to a calendar year, in




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which case the Company and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement
that are necessary to reflect such change in fiscal year. If the Company changes its fiscal year
to end on December 31, any reference herein to a fiscal year ending “March 31” of a specified year
following the date of such change shall be deemed to refer to the fiscal year ending on December 31
of the preceding calendar year.





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          SECTION 6.09. Financial Covenant. (a) Subject to the proviso set forth below, the Company will not
permit the Consolidated Interest Coverage Ratio as of the last day of any Test Period ending on a
date set forth below to be less than the ratio set forth below opposite such date:




	 	 	 
	Date	 	Ratio
	June 30, 2008

	 	1.00:1.00
	September 30, 2008

	 	1.00:1.00
	December 31, 2008

	 	1.10:1.00
	March 31, 2009

	 	1.10:1.00
	June 30, 2009

	 	1.10:1.00
	September 30, 2009

	 	1.10:1.00
	December 31, 2009

	 	1.40:1.00
	March 31, 2010

	 	1.40:1.00
	June 30, 2010

	 	1.40:1.00
	September 30, 2010

	 	1.40:1.00
	December 31, 2010

	 	1.75:1.00
	March 31, 2011

	 	1.75:1.00
	June 30, 2011

	 	1.75:1.00
	September 30, 2011

	 	1.75:1.00
	December 31, 2011

	 	2.00:1.00
	March 31, 2012

	 	2.00:1.00
	June 30, 2012

	 	2.00:1.00
	September 30, 2012

	 	2.00:1.00
	December 31, 2012

	 	2.00:1.00
	March 31, 2013

	 	2.00:1.00
	June 30, 2013

	 	2.00:1.00
	September 30, 2013

	 	2.00:1.00
	December 31, 2013

	 	2.00:1.00
	March 31, 2014

	 	2.00:1.00
	June 30, 2014

	 	2.00:1.00






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; provided, that the Company shall be required to comply with this covenant for the Test
Period ending June 30, 2008 only if the Company shall have consummated after the Effective Date one
or more offerings of Qualified Equity Interests resulting in receipt by the Company prior to June
15, 2008 of gross proceeds of at least $1,000,000,000.




          (b) The Company will not permit the Consolidated Senior Leverage Ratio at any date set forth
below to exceed the ratio set forth opposite such date.




	 	 	 
	Date	 	Ratio
	June 30, 2008

	 	7.00:1.00
	September 30, 2008

	 	6.50:1.00
	December 31, 2008

	 	5.25:1.00
	March 31, 2009

	 	5.25:1.00
	June 30, 2009

	 	5.25:1.00
	September 30, 2009

	 	5.25:1.00
	December 31, 2009

	 	4.00:1.00
	March 31, 2010

	 	4.00:1.00
	June 30, 2010

	 	4.00:1.00
	September 30, 2010

	 	4.00:1.00
	December 31, 2010

	 	3.50:1.00
	March 31, 2011

	 	3.50:1.00
	June 30, 2011

	 	3.50:1.00
	September 30, 2011

	 	3.50:1.00
	December 31, 2011

	 	3.50:1.00
	March 31, 2012

	 	3.50:1.00
	June 30, 2012

	 	3.50:1.00
	September 30, 2012

	 	3.50:1.00
	December 31, 2012

	 	3.50:1.00
	March 31, 2013

	 	3.50:1.00
	June 30, 2013

	 	3.50:1.00
	September 30, 2013

	 	3.50:1.00
	December 31, 2013

	 	3.50:1.00
	March 31, 2014

	 	3.50:1.00






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	Date	 	Ratio
	June 30, 2014

	 	3.50:1.00






          SECTION 6.10. Restrictive Agreements. The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon the ability of any
Subsidiary that is not a U.S. Guarantor to pay dividends or other distributions with respect to
holders of its Equity Interests; provided that the foregoing shall not apply to (i) prohibitions,
restrictions and conditions imposed by law or by this Agreement, the Interim Loan Agreement or the
indenture governing the Exchange Notes and any Permitted Refinancing Indebtedness in respect
thereof, (ii) prohibitions, restrictions and conditions existing on the date hereof or imposed by
the Interim Loan Agreement or the indenture governing the Exchange Notes (or any extension,
refinancing or renewal thereof or any amendment or modification thereto that is not materially more
restrictive (in the good faith determination of the Company) than any such restriction or
condition), (iii) prohibitions, restrictions and conditions arising in connection with any
Disposition permitted by Section 6.11 with respect to the Property subject to such Disposition,
(iv) customary prohibitions, restrictions and conditions contained in agreements relating to a
Permitted Receivables Facility, (v) agreements or arrangements binding on a Subsidiary at the time
such Subsidiary becomes a Subsidiary of the Company or any permitted extension, refinancing or
renewal of, or any amendment or modification to, any such agreement or arrangement so long as any
such extension, refinancing, renewal, amendment or modification is not materially more restrictive
(in the good faith determination of the Company) than such agreement or arrangement, (vi)
prohibitions, restrictions and conditions set forth in Indebtedness of a Subsidiary that is not a
Loan Party which is permitted by this Agreement, (vii) agreements or arrangements that are
customary provisions in joint venture agreements and other similar agreements or arrangements
applicable to joint ventures, (viii) prohibitions, restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such prohibitions,
restrictions or conditions apply only to the Subsidiaries incurring or Guaranteeing such
Indebtedness, (ix) customary provisions in leases, subleases, licenses, sublicenses or permits so
long as such prohibitions, restrictions or conditions relate only to the property subject thereto,
(x) customary provisions in leases restricting the assignment or subletting thereof, (xi) customary
provisions restricting assignment or transfer of any contract entered into in the ordinary course
of business or otherwise permitted hereunder, (xii) prohibitions, restrictions or conditions on
cash or other deposits imposed by customers under contracts entered into in the ordinary course of
business and (xiii) prohibitions, restrictions or conditions imposed by a Lien permitted by Section
6.02 with respect to the transfer of the Property subject thereto.




          SECTION 6.11. Dispositions. The Company will not, and will not permit any Subsidiary to, make any
Disposition, except:





     (a) Dispositions of obsolete or worn out Property and Dispositions of property no
longer used or useful in the conduct of the business of the Company and the Subsidiaries, in
each case, in the ordinary course of business;



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     (b) Dispositions of inventory and immaterial assets in the ordinary course of business;




     (c) 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;




     (d) Dispositions of Property (i) to the Company or to a Subsidiary; provided
that if the transferor of such Property is (x) a U.S. Loan Party, the transferee thereof
must be a U.S. Loan Party or (y) a Foreign Loan Party, the transferee thereof must be a Loan
Party, (ii) to the extent such transaction constitutes an Investment permitted under Section
6.05 and (iii) consisting of Equity Interests of Foreign Subsidiaries to other Foreign
Subsidiaries;




     (e) Dispositions permitted by Sections 6.03 and 6.04 and Liens permitted by Section
6.02 and Dispositions of Receivables and Related Assets in connection with Permitted
Receivables Facilities;




     (f) Dispositions of cash and Cash Equivalents;




     (g) Dispositions of accounts receivable in connection with the collection or compromise
thereof;




     (h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of
business and which do not materially interfere with the business of the Company and the
Subsidiaries;




     (i) transfers of Property to the extent subject to Casualty Events;




     (j) any Disposition of Property; provided that (i) at the time of such
Disposition (other than any such Disposition made pursuant to a legally binding commitment
entered into at a time when no Event of Default exists), no Event of Default shall exist or
would result from such Disposition, (ii) at the time of any such Disposition, the aggregate
book value of all property Disposed of in reliance on this clause (j) (including such
Disposition) would not exceed $500,000,000 in the aggregate and (iii) with respect to any
Disposition pursuant to this clause (j) for a purchase price in excess of $50,000,000, the
Company or a Subsidiary shall receive not less than 75% of such consideration in the form of
cash or Cash Equivalents; provided, however, that for the purposes of this
clause (iii), each of the following shall be deemed to be cash: (A) any liabilities (as
shown on the Company’s or such Subsidiary’s most recent balance sheet provided hereunder or
in the footnotes thereto) of the Company or such Subsidiary, other than liabilities that are
by their terms subordinated to the payment in cash of the Obligations, that are assumed by
the transferee with respect to the applicable Disposition and for which the Company and all
of the Subsidiaries shall have been validly released by all applicable creditors in writing
and (B) any securities received by the Company or such Subsidiary from such trans-



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feree that are converted by the Company or such Subsidiary into cash (to the extent of
the cash received) within 180 days following the closing of the applicable Disposition;




     (k) Dispositions listed on Schedule 6.11(k); and




     (l) Dispositions of Investments in, and issuances of any Equity Interests in, joint
ventures to the extent required by, or made pursuant to customary buy/sell arrangements
between, the joint venture parties set forth in joint venture arrangements and similar
binding arrangements;




     (m) any Disposition of Property; provided that (i) at the time of such
Disposition (other than any such Disposition made pursuant to a legally binding commitment
entered into at a time when no Event of Default exists), no Event of Default shall exist or
would result from such Disposition, (ii) at the time of any such Disposition, the aggregate
book value of all property Disposed of in reliance on this clause (j) (including such
Disposition) would not exceed $1,250,000,000 in the aggregate, (iii) with respect to any
Disposition pursuant to this clause (m) for a purchase price in excess of $50,000,000, the
Company or a Subsidiary shall receive not less than 75% of such consideration in the form of
cash or Cash Equivalents; provided, however, that for the purposes of this
clause (iii), each of the following shall be deemed to be cash: (A) any liabilities (as
shown on the Company’s or such Subsidiary’s most recent balance sheet provided hereunder or
in the footnotes thereto) of the Company or such Subsidiary, other than liabilities that are
by their terms subordinated to the payment in cash of the Obligations, that are assumed by
the transferee with respect to the applicable Disposition and for which the Company and all
of the Subsidiaries shall have been validly released by all applicable creditors in writing
and (B) any securities received by the Company or such Subsidiary from such transferee that
are converted by the Company or such Subsidiary into cash (to the extent of the cash
received) within 180 days following the closing of the applicable Disposition and (iv) the
Company shall prepay Term Loans in an amount up to the Net Cash Proceeds received from such
Disposition in the manner and to the extent required by Section 2.11(b);


provided that any Disposition of any Property to the extent classified pursuant to one or
more of Sections 6.11(j), (k) and (m) shall be for no less than the fair market value of such
Property at the time of such Disposition in the good faith determination of the Company.




          SECTION 6.12. Lines of Business. The Company will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business substantially different from the businesses of
the type conducted by the Company and its Subsidiaries on the date of execution of this Agreement
and businesses reasonably related, ancillary or complementary thereto and reasonable extensions
thereof.




-105-









 








ARTICLE VII




Events of Default




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





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




     (b) any Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five (5) Business Days;




     (c) any representation or warranty made or deemed made by or on behalf of any Borrower
or any Subsidiary in or in connection with this Agreement or any other Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document required to be delivered in connection with this
Agreement or any other Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when made or deemed
made;




     (d) the Company shall fail to observe or perform any covenant, condition or agreement
contained in Article VI;




     (e) any Loan Party, as applicable, shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified in clause
(a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue
unremedied for a period of thirty (30) days after written notice thereof from the
Administrative Agent to the Company;




     (f) any Borrower or any Material Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable, or if a grace period shall be applicable
to such payment under the agreement or instrument under which such Indebtedness was created,
beyond such applicable grace period;




     (g) any Borrower or any Subsidiary shall default in the performance of any obligation
in respect of any Material Indebtedness or any “change of control” (or equivalent term)
shall occur with respect to any Material Indebtedness, in each case, that results in such
Material Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both, but after giving
effect to any applicable grace period) the holder or holders of such Material Indebtedness
or any trustee or agent on its or their behalf to cause such Material Indebted-



-106-









 







ness to become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity (other than solely in Qualified Equity Interests);
provided that this clause (g) shall not apply to secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness;




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




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




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




     (k) one or more final, non-appealable judgments for the payment of money in an
aggregate amount in excess $50,000,000 (to the extent due and payable and not covered by
insurance as to which the relevant insurance company has not denied coverage) shall be
rendered against any Borrower, any Material Subsidiary or any combination thereof and the
same shall remain unpaid or undischarged for a period of thirty (30) consecutive days during
which execution shall not be bonded or effectively stayed, or any writ or warrant of
attachment or execution or similar process is issued or levied against all or any material
part of the assets of the Borrowers and the Material Subsidiaries, taken as a whole, and is
not released, vacated or fully bonded within thirty (30) days after its issue or levy;




     (l) an ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect or in the imposition of a Lien or security interest on any assets of the Company or
any Subsidiary under Sections 401(a)(29) or 412(n) of the Code or under Section 4068 of
ERISA;



-107-









 






     (m) a Change in Control shall occur;




     (n) any material provision of any Collateral Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or thereunder
(including as a result of a transaction permitted under Section 6.03 or 6.11) or as a result
of acts or omissions by the Administrative Agent or any Lender or the satisfaction in full
of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in
writing the validity or enforceability of any provision of any Collateral Document; or any
Loan Party denies in writing that it has any or further liability or obligation under any
Collateral Document (other than as a result of repayment in full of the Obligations and
termination of the Commitments), or purports in writing to revoke or rescind any Collateral
Document, in each case with respect to a material portion of the Collateral purported to be
covered by the Collateral Documents,


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




          Notwithstanding anything to contrary herein, any Specified Target Default shall not constitute
an Event of Default under this Article VII unless such Specified Target Default has not been cured
or waived on or prior to the 90th day following the Effective Date.




          On the CAM Exchange Date, (i) the Commitments shall automatically and without further act be
terminated in accordance with Article VII, (ii) the Lenders shall automatically and without further
act be deemed to have exchanged interests in the Designated Obligations such that, in lieu of the
interests of each Lender in the Designated Obligations under each Class of Loans and Commitments in
which it shall participate immediately prior to the CAM Exchange, such Lender shall own an interest
equal to such Lender’s CAM Percentage in the Designated Obligations under each Class of Loans and
Commitments immediately following the CAM Exchange and (iii) simultaneously with the deemed
exchange of interests pursuant to clause (ii) above, the interests in the Designated Obligations to
be received in such deemed exchange shall, automatically and with no further action required, be
converted into Dollars based on the Dollar



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Amount thereof, determined using the Exchange Rate calculated as of the CAM Exchange Date, of
such amount and on and after such date all amounts accruing and owed to the Lenders in respect of
such Designated Obligations shall accrue and be payable in Dollars at the rate otherwise applicable
hereunder. Each Lender, each Person acquiring a participation from any Lender as contemplated by
Section 9.04 and each Borrower hereby consents and agrees to the CAM Exchange. Each of the
Borrowers and the Lenders agrees from time to time to execute and deliver to the Administrative
Agent all such promissory notes and other instruments and documents as the Administrative Agent
shall reasonably request to evidence and confirm the respective interests and obligations of the
Lenders after giving effect to the CAM Exchange, and each Lender agrees to surrender any promissory
notes originally received by it in connection with its Loans hereunder to the Administrative Agent
against delivery of any promissory notes so executed and delivered; provided that the
failure of any Borrower to execute or deliver or of any Lender to accept any such promissory note,
instrument or document shall not affect the validity or effectiveness of the CAM Exchange.




          As a result of the CAM Exchange, on and after the CAM Exchange Date, each payment received by
the Administrative Agent pursuant to any Loan Document in respect of the Designated Obligations
shall be distributed to the Lenders pro rata in accordance with their respective CAM Percentages
(to be redetermined as of each such date of payment or distribution to the extent required by the
next paragraph below).




          In the event that, on or after the CAM Exchange Date, the aggregate amount of the Designated
Obligations shall change as a result of the making of an LC Disbursement that is not reimbursed by
any Borrower, then (i) each Revolving Lender shall, in accordance with Section 2.06(e), promptly
pay its Applicable Percentage of such LC Disbursement to the relevant Issuing Bank in respect of
such unreimbursed LC Disbursement (without giving effect to the CAM Exchange), (ii) the
Administrative Agent shall redetermine the CAM Percentages after giving effect to such disbursement
and the making of such payments and the Lenders shall automatically and without further act be
deemed to have exchanged interests in the Designated Obligations such that each Lender shall own an
interest equal to such Lender’s CAM Percentage in the Designated Obligations under each of the
Tranches (and the interests in the Designated Obligations to be received in such deemed exchange
shall, automatically and with no further action required, be converted into the Dollar Amount of
such amount in accordance with the first sentence of the preceding paragraph), and (iii) in the
event distributions shall have previously been made with respect to the Designated Obligations in
accordance with the preceding paragraph, the Lenders shall make such payments to one another as
shall be necessary in order that the amounts received by them shall be equal to the amounts they
would have received had each such LC Disbursement been outstanding on the CAM Exchange Date. Each
such redetermination shall be binding on each of the Lenders and their successors and assigns and
shall be conclusive, absent manifest error.




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ARTICLE VIII




The Administrative Agent




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




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




          (c) To the extent required by any applicable law, the Agents may withhold from any payment to
any Lender an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service
or any other authority of the United States or other jurisdiction asserts a claim that an Agent did
not properly withhold Tax from amounts paid to or for the account of any Lender for any reason
(including, without limitation, because the appropriate form was not delivered or not properly
executed, or because such Lender failed to notify the Agent of a change in circumstance that
rendered the exemption from, or reduction of withholding Tax ineffective), such Lender shall
indemnify and hold harmless the Agent (to the extent that the Agent has not already been reimbursed
by any Borrower and without limiting or expanding the obligation of any Borrower to do so) for all
amounts paid, directly or indirectly, by the Agent as Tax or otherwise, including any interest,
additions to Tax or penalties thereto, together with all expenses incurred, including legal
expenses and any other out-of-pocket expenses, whether or not such Tax was correctly or legally
imposed or asserted by the relevant Government Authority. A certificate as to the amount of such
payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent
manifest error.




          (d) The Administrative Agent shall not have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided herein), and (c) except as expressly set forth
herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required



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Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided herein) or in the absence of its own bad faith, gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.




          (e) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or
other writing believed by it to be genuine and to have been signed or sent by the proper Person.
The Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Company), 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 in the absence of gross negligence or willful misconduct.




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




          (g) Subject to the appointment and acceptance of a successor Administrative Agent as provided
in this paragraph, the Administrative Agent may resign upon thirty (30) days’ notice to the
Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall
have the right, in consultation with the Company and (unless a Specified Event of Default shall
have occurred and be continuing) with the consent of the Company (which consent of the Company
shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a
successor Administrative Agent from among the Lenders which shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the



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retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder. The fees payable by any Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between such Borrower and such successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect for 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 it was acting as Administrative
Agent.




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




          (i) The Lenders irrevocably agree:





     (i) that any Lien on any Property granted to or held by the Administrative Agent under
any Loan Document shall be automatically released (A) upon termination of the Commitments
and payment in full of all Obligations or, solely in the case of any Lien solely for the
Foreign Obligations, the Foreign Obligations (in each case, other than (x) obligations under
Secured Hedge Agreements, (y) Cash Management Obligations and (z) contingent reimbursement
and indemnification obligations not yet accrued and payable) and the expiration or
termination of all Letters of Credit, (B) at the time the Property subject to such Lien is
transferred or to be transferred as part of or in connection with any transfer permitted
hereunder or under any other Loan Document to any Person (other than (x) in the case of a
transfer by a U.S. Loan Party, any transfer to another U.S. Loan Party and (y) in the case
of a transfer by a Foreign Loan Party, any transfer to another Foreign Loan Party), (C)
subject to Section 9.02, if the release of such Lien is approved, authorized or ratified in
writing by the Required Lenders (or such greater number of Lenders as may be required
pursuant to Section 9.02), or (D) if the Property subject to such Lien is owned by a
Guarantor, upon release of such Guarantor from its obligations under its Guarantee under the
applicable Guarantee and Security Agreement pursuant to clause (iii) below;




     (ii) (A) to release or subordinate any Lien on any Property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 6.02(e) and (B) that the Administrative Agent is authorized (but not
required) to release or subordinate any Lien on any Property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such Property that
is permitted by any other clause of Section 6.02; and



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     (iii) that any Guarantor shall be automatically released from its obligations under the
applicable Guarantee and Security Agreement if such Person ceases to be a Subsidiary as a
result of a transaction permitted hereunder.


Upon request by the Administrative Agent at any time, the Required Lenders (or such greater number
of Lenders as may be required pursuant to Section 9.02) will confirm in writing the Administrative
Agent’s authority to release or subordinate its interest in particular types or items of Property,
or to release any Guarantor from its obligations under the applicable Guarantee and Security
Agreement pursuant to this paragraph (h). In each case as specified in this paragraph (h), the
Administrative Agent will (and each Lender irrevocably authorizes the Administrative Agent to), at
the Company’s expense, execute and deliver to the applicable Loan Party such documents as such Loan
Party may reasonably request to evidence the release or subordination of such item of Collateral
from the assignment and security interest granted under the Collateral Documents, or to evidence
the release of such Guarantor from its obligations under the applicable Guarantee and Security
Agreement, in each case in accordance with the terms of the Loan Documents and this paragraph (h).




          (j) None of the Persons, if any, identified in this Agreement as an Arranger, Syndication
Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility
or duty under this Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with
any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Persons
in their respective capacities as an Arranger, Syndication Agent or Co-Documentation Agent, as
applicable, as it makes with respect to the Administrative Agent in the preceding paragraph.




          (k) Parallel Debt. For purposes of Luxembourg law and German law Collateral Documents
only:





     (i) The Euro Borrower irrevocably and unconditionally undertakes, as far as necessary
in advance, to pay to the Administrative Agent an amount equal to the aggregate of all
Foreign Obligations to all the Lenders and the Issuing Bank from time to time due in
accordance with the terms and conditions of this Agreement (such payment undertaking and the
obligations and liabilities which are the result thereof are referred to as “Parallel
Debt”).




     (ii) Each of the parties to this Agreement acknowledges that (i) for this purpose, the
Parallel Debt of the Euro Borrower constitutes undertakings, obligations and liabilities of
the Euro Borrower to the Administrative Agent which are separate and independent from, and
without prejudice to, the Foreign Obligations which the Euro Borrower owes to any Lender or
Issuing Bank and (ii) that the Parallel Debt represents the Administrative Agent’s own claim
to receive payment of such Parallel Debt by the Euro Borrower; provided that the
total amount which may become due under the Parallel Debt of the Euro Borrower under this
clause (k) shall never exceed the total amount which may become due under all the Foreign
Obligations of the Euro Borrower to all the Lenders and the Issuing Bank.



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     (iii) (A) The total amount due by the Euro Borrower as the Parallel Debt under this
clause (k) shall be decreased to the extent that the Euro Borrower shall have irrevocably
and unconditionally paid any amounts to the Lenders and the Issuing Bank or any of them to
reduce the Euro Borrower’s outstanding Foreign Obligations or any Lender or Issuing Bank
otherwise receives any amount in irrevocable and unconditional payment of such Foreign
Obligations (other than by virtue of paragraph (B) hereafter); and




     (B) To the extent that the Euro Borrower shall have irrevocably and unconditionally
paid any amounts to the Administrative Agent under the Parallel Debt or the Administrative
Agent shall have otherwise received monies in irrevocable and unconditional payment of such
Parallel Debt, the total amount due under the Foreign Obligations shall be decreased.



          (l) Administrative Agent as Joint and Several Creditor. For purposes of Luxembourg
law and German law Collateral Documents only:





     (i) Each party hereto agrees that the Administrative Agent:




     (A) will be the joint and several creditor (together with the relevant Lenders
and the Issuing Bank) of each and every obligation of the Foreign Borrower towards
each Lender and the Issuing Bank under this Agreement; and




     (B) will have its own independent right to demand performance by the Euro
Borrower of those obligations.




     (ii) Discharge by the Euro Borrower of any obligation owed to the Administrative Agent
or another Lender and the Issuing Bank shall, to the same extent, discharge the
corresponding obligation owing to the other.




     (iii) Without limiting or affecting the Administrative Agent’s rights against the Euro
Borrower (whether under this Article VIII or under any other provision of the Credit
Agreement), the Administrative Agent agrees with each other Lender and the Issuing Bank (on
a several and divided basis) that, subject to paragraph (iv) below, it will not exercise its
rights as a joint and several creditor with a Lender or an Issuing Bank except with the
consent of the relevant Lender or Issuing Bank.




     (iv) Nothing in paragraph (iii) above shall in any way limit the Administrative Agent’s
right to act in the protection or preservation of rights under or to enforce any Collateral
Document as contemplated by this Agreement and/or the relevant Collateral Document (or to do
any act reasonably incidental to any of the above).



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ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices.




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





     (i) if to any Borrower, to it c/o Mylan Laboratories Inc. at 1500 Corporate Drive,
Canonsburg, Pennsylvania 15317, Attention of Chief Financial Officer (Telecopy No. (724)
514-1871; Telephone No. (724) 514-1800); with a copy to Treasurer and (in the case of a
notice of a Default) to Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New
York, New York 10019-7475, Attention of Paul Michalski, Esq. (Telecopy No. (212) 474-3700);




     (ii) if to the Administrative Agent, to (A) in the case of Borrowings by the Company
denominated in Dollars, JPMorgan Chase Bank, National Association, Loan and Agency Services
Group, 10 South Dearborn, 19th Floor, Chicago, Illinois 60603, Attention of Mi Y Kim
(Telecopy No. (312) 385-7098) and (B) in the case of Borrowings by the Euro Borrower or
denominated in Agreed Currencies other than Dollars, JPMorgan Europe Limited, 125 London
Wall, London EC2Y 5AJ, Attention of Belinda Lucas (Telecopy No. 011-44207-777-2360), and in
each case with a copy to JPMorgan Chase Bank, National Association, 277 Park Avenue,
23rd Floor, New York, New York 10172, Attention of Deborah Winkler (Telecopy No.
(646) 534-3081);




     (iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, National Association, Loan
and Agency Services Group, 10 South Dearborn, 7th Floor, Chicago, Illinois 60603, Attention
of Mi Y Kim (Telecopy No. (312) 385-7098), with a copy to JPMorgan Chase Bank, National
Association, 277 Park Avenue, 23rd Floor, New York, New York 10172, Attention of Deborah
Winkler (Telecopy No. (646) 534-3081) or if an additional Issuing Bank is appointed, to it
at the address, facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties;




     (iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, National Association,
Loan and Agency Services Group, 10 South Dearborn, 19th Floor, Chicago, Illinois 60603,
Attention of Mi Y Kim (Telecopy No. (312) 385-7098), with a copy to JPMorgan Chase Bank,
National Association, 277 Park Avenue, 23rd Floor, New York, New York 10172,
Attention of Deborah Winkler (Telecopy No. (646) 534-3081); and




     (v) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.



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          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Company 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.




          (c) Any party hereto may change its address, electronic mail address or telecopy number for
notices and other communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of delivery, or three Business Days after being
deposited in the mail, postage prepaid.




          SECTION 9.02. Waivers; Amendments.




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




          (b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect
to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof
or thereof may be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders or by the Borrowers and the
Administrative Agent with the consent of the Required Lenders; provided that no such
agreement shall (i) increase the Commitment of any Lender without the written consent of each
Lender directly affected thereby, it being understood that a waiver of any condition precedent set
forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an
increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender directly affected thereby, it being understood that any change
to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall
not constitute a reduction in the rate; provided that only the consent of the Required
Lenders shall be necessary to amend Section




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2.13(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth
therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender directly affected thereby, it being understood that the
waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not
constitute a postponement of any date scheduled for the payment of principal or interest, (iv)
change Section 2.18(b) or (c) or the provisions of the CAM Exchange in a manner that would alter
the pro rata sharing of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder without the written
consent of each Lender, (vi) release all or substantially all of the Guarantors from their
obligations under the applicable Guarantee and Security Agreements, without the written consent of
each Lender or (vii) release all or substantially all of the Collateral from the Lien of the
Collateral Documents; provided further that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the
Swingline Lender hereunder without the prior written consent of the Administrative Agent, the
relevant Issuing Bank or the Swingline Lender, as the case may be. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder which does not require the consent of each affected Lender (it being
understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded for a vote of the Lenders hereunder requiring any consent of less than all affected
Lenders).




          Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or
amended and restated) with the written consent of the Required Lenders, the Administrative Agent
and the Borrowers (i) to add one or more additional credit facilities to this Agreement and to
permit the extensions of credit from time to time outstanding thereunder and the accrued interest
and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan
Documents with the Term Loans and Revolving Credit Exposures and the accrued interest and fees in
respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.




          In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be
amended with the written consent of the Administrative Agent, the Company and the Lenders providing
the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term
Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche
denominated in Dollars or, in the case of the Euro Term Loan, in Euros (“Replacement Term
Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement
Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the
Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for
such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term
Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans
at the time of such refinancing (except to the extent of nominal amortization for periods where
amortization has been eliminated as a result of



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prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term
Loans shall be substantially identical to, or less favorable to the Lenders providing such
Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent
necessary to provide for covenants and other terms applicable to any period after the latest final
maturity of the Term Loans in effect immediately prior to such refinancing.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver.




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




          (b) Each Borrower shall indemnify the Administrative Agent, the Arrangers, each Issuing Bank
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 reasonable and documented out-of-pocket expenses,
including the reasonable and documented fees, charges and disbursements of a single counsel for the
Indemnitees (and, if necessary, one local counsel in each applicable jurisdiction and one
additional counsel for each Indemnitee in the event of conflicts of interest), incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder or the consummation of
the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) to the extent relating to or
arising from any of the foregoing, any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Company or any of its Subsidiaries, or any
Environmental Liability related in any way to the Company or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing,



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whether based on contract, tort or any other theory and regardless of whether any Indemnitee
is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or any of
its officers, directors, employees, Affiliates, agents or controlling Persons.




          (c) To the extent that any Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, an Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the relevant Issuing Bank
or the Swingline Lender, as the case may be, such Lender’s pro rata share (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, such Issuing Bank or the Swingline Lender in its capacity as such.




          (d) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.




          (e) All amounts due under this Section shall be payable not later than fifteen (15) days after
written demand therefor; provided, however, that an Indemnitee shall promptly
refund any amount received under this Section 9.03 to the extent that there is a final judicial or
arbitral determination that such Indemnitee was not entitled to indemnification rights with respect
to such payment pursuant to the express terms of this Section 9.03.




          SECTION 9.04. Successors and Assigns.




          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of an Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by any Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of an Issuing Bank that
issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.




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





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




     (B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender,
an Affiliate of a Lender or an Approved Fund; and




     (C) the Issuing Banks; provided that no consent of any Issuing Bank shall be
required for an assignment of all or any portion of a Term Loan.




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




     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 or, (x) in the case of a Term Loan denominated in Dollars,
$1,000,000 or (y) in the case of a Term Loan denominated in euro, €1,000,000, in each case,
unless each of the Company and the Administrative Agent otherwise consent, provided
no assignment (including to a Lender or an Affiliate of a Lender or an Approved Fund) shall
be in an amount of less than €50,000 (or the Equivalent Amount thereof in Dollars);




     (B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, provided
that this clause shall not be construed to prohibit the assignment of a proportionate part
of all the assigning Lender’s rights and obligations in respect of one Class of Commitments
or Loans;




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




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



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:




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




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.




          (iv) The Administrative Agent, acting for this purpose as an agent of each Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Banks
and the Lenders shall 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 Company, any Issuing Bank and
any Lender, at any reasonable time and from time to time upon reasonable prior notice.




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.




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




          (ii) Each Lender that sells a participation shall, acting solely for this purpose as an agent
of the Borrowers, maintain a register on which it enters the name and address of each Participant
and the principal amounts (and stated interest) of each participant’s interest in the Loans or
other obligations under this Agreement (the “Participant Register”). The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
person whose name is recorded in the Participant Register as the owner of the participation in
question for all purposes of this Agreement notwithstanding any notice to the contrary.




          (iii) A Participant shall not be entitled to receive any greater payment under Section 2.15,
2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Company’s prior written consent.




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




          (v) Notwithstanding any other provision of this Agreement, no Lender will assign its rights
and obligations under this Agreement, or sell participations in its rights and/or obligations under
this Agreement, to any Person who is (i) listed on the Specially Designated





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Nationals and Blocked Persons List maintained by the U.S. Department of Treasury Office of Foreign
Assets Control (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any
authorizing statute, executive order or regulation or (ii) either (A) included within the term
“designated national” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (B)
designated under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No. 13224, 66 Fed. Reg. 49079
(published September 25, 2001) or similarly designated under any related enabling legislation or
any other similar executive orders.




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




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




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




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          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final and in whatever currency
denominated) at any time held and other obligations at any time owing by such Lender or Affiliate
to or for the credit or the account of any Borrower against any of and all the Obligations of such
Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured; provided that, in the case of any deposits or other
obligations for the credit or the account of any Foreign Subsidiary, such setoff may only be
against any Obligations of Foreign Subsidiaries. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff) which such Lender may
have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event
shall the assets of any Foreign Subsidiary that is not a U.S. Loan Party constitute collateral
security for payment of the Obligations of the Company or any Domestic Subsidiary, it being
understood that (a) the Equity Interests of any Foreign Subsidiary that is a first-tier Subsidiary
of a U.S. Loan Party do not constitute such an asset (if owned by a U.S. Loan Party) and (b) the
provisions hereof shall not limit, reduce or otherwise diminish in any respect the Borrowers’
obligations to make any mandatory prepayment pursuant to Section 2.11(b)(ii).




          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.




          (a) This Agreement shall be construed in accordance with and governed by the law of the State
of New York (without regard to the conflict of law principles thereof to the extent that the
application of the laws of another jurisdiction would be required thereby).




          (b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. The foregoing
shall not affect any right that any party hereto may otherwise have to bring any action or
proceeding relating to this Agreement against any other party or its properties in the courts of
any jurisdiction.




          (c) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
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



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law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement (including the Euro Borrower) irrevocably consents to service
of process in the manner provided for notices in Section 9.01. The Euro Borrower irrevocably
designates and appoints the Company, as its authorized agent, to accept and acknowledge on its
behalf, service of any and all process which may be served in any suit, action or proceeding of the
nature referred to in Section 9.09(b) in any federal or New York State court sitting in New York
City. The Company hereby represents, warrants and confirms that the Company has agreed to accept
such appointment. Said designation and appointment shall be irrevocable by the Euro Borrower until
all Loans, all reimbursement obligations, interest thereon and all other amounts payable by the
Euro Borrower hereunder and under the other Loan Documents shall have been paid in full in
accordance with the provisions hereof and thereof. The Euro Borrower hereby consents to process
being served in any suit, action or proceeding of the nature referred to in Section 9.09(b) in any
federal or New York State court sitting in New York City by service of process upon the Company as
provided in this Section 9.09(d); provided that, to the extent lawful and possible, notice
of said service upon such agent shall be mailed by registered or certified air mail, postage
prepaid, return receipt requested, to the Company and (if applicable to) the Euro Borrower to the
address of which the Euro Borrower shall have given written notice to the Administrative Agent
(with a copy thereof to the Company). The Euro Borrower irrevocably waives, to the fullest extent
permitted by law, all claim of error by reason of any such service in such manner and agrees that
such service shall be deemed in every respect effective service of process upon the Euro Borrower
in any such suit, action or proceeding and shall, to the fullest extent permitted by law, be taken
and held to be valid and personal service upon and personal delivery to the Euro Borrower. To the
extent the Euro Borrower has or hereafter may acquire any immunity from jurisdiction of any court
or from any legal process (whether from service or notice, attachment prior to judgment, attachment
in aid of execution of a judgment, execution or otherwise), the Euro Borrower hereby irrevocably
waives such immunity in respect of its obligations under the Loan Documents. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.




          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, 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 PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.




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          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates’ directors, officers, partners, members, employees, managers,
administrators, trustees and agents, including accountants, legal counsel and other advisors solely
for the purpose of, or otherwise directly in connection with this Agreement (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 pursuant to the terms
hereof), (b) to the extent requested or required by any Governmental Authority or by the National
Association of Insurance Commissioners or any representative thereof, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process (provided,
however, that, to the extent practicable and permitted by law, the Company has been
notified prior to such disclosure so that the Company may seek, at the Company’s sole expense, a
protective order or other appropriate remedy), (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder
(provided, however, to the extent practicable and permitted by law, the Company is
notified prior to such disclosure so that the Company may seek, at the Company’s sole expense, a
protective order or other appropriate remedy), (f) subject to an agreement for the benefit of the
Borrowers containing provisions at least as restrictive as those of this Section, to (i) any
assignee or any prospective assignee of any of its rights or obligations under this Agreement (and
to any Participant or prospective Participant in any of its rights or obligations under this
Agreement) or (ii) any direct or indirect actual or prospective party (or its managers,
administrators, trustees, partners, directors, officers, employees, agents, advisors and other
representatives) to any swap or derivative or similar transaction under which payments are to be
made by reference to any Borrower and its obligations, this Agreement or payments hereunder, (g)
with the consent of the Company or (h) to any ratings agency or the CUSIP Bureau or any similar
organization or to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or, to the knowledge of such disclosing person, as a result of a
breach of a confidentiality agreement with any other Person or (ii) that is or becomes available to
the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source
other than the Company not in violation of any obligation of confidentiality. For the purposes of
this Section, “Information” means all information received from the Company relating to the
Company or its business, other than any such information that is publicly available (other than as
a result of a breach of this Section) to the Administrative Agent, any Issuing Bank or any Lender
prior to disclosure by the Company.




          EACH LENDER ACKNOWLEDGES THAT INFORMATION FURNISHED TO IT PURSUANT TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY, THE OTHER
LOAN PARTIES AND THEIR AFFILIATES AND RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS
THAT IT HAS DEVELOPED CUSTOMARY PROCEDURES REGARDING THE USE OF MA-




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TERIAL NON-PUBLIC INFORMATION INTENDED TO COMPLY WITH APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS, AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH SUCH CUSTOMARY PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS. NOTHING IN THE FOREGOING SHALL (I) PREVENT ANY
LENDER FROM DISCLOSING INFORMATION TO THE EXTENT PERMITTED BY THE IMMEDIATELY PRECEDING PARAGRAPH
OR (II) DIMINISH THE OBLIGATION OF THE COMPANY TO IDENTIFY INFORMATION THAT MAY BE PROVIDED TO
PUBLIC LENDERS IN ACCORDANCE WITH THE FINAL PARAGRAPH OF SECTION 5.01.




          SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies each Loan Party
that pursuant to the requirements of the Act, it is required to obtain, verify and record
information that identifies such Loan Party, which information includes the name and address of
such Loan Party and other information that will allow such Lender to identify such Loan Party in
accordance with the Act.




          SECTION 9.14. Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other amounts which are
treated as interest on such Loan under applicable Law (collectively the “Charges”), shall
exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with applicable Law, the
rate of interest payable in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not payable as a result of
the operation of this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such Lender.




          SECTION 9.15. No Fiduciary Duty. In connection with all aspects of each transaction contemplated by this Agreement, the
Borrowers acknowledge and agree, and acknowledge the other Loan Parties’ understanding, that (i)
each transaction contemplated by this Agreement is an arm’s-length commercial transaction, between
the Loan Parties, on the one hand, and the Administrative Agent and the Lenders, on the other hand,
(ii) in connection with each such transaction and the process leading thereto, the Administrative
Agent and the Lenders will act solely as principals and not as agents or fiduciaries of the Loan
Parties or any of their stockholders, affiliates, creditors, employees or any other party, (iii)
neither the Administrative Agent nor any Lender will assume an advisory or fiduciary responsibility
in favor of the Company or any of its Affiliates with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether the Administrative
Agent or any Lender has advised or is currently advising any Loan Party on other matters) and
neither the Administrative Agent nor any Lender will have any obligation to any Loan Party or any
of its Affiliates with respect to the transactions contemplated in this Agreement except the
obligations expressly set



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forth herein, (iv) the Administrative Agent and each Lender may be engaged in a broad range of transactions that involve interests that differ from those of the Loan
Parties and their affiliates, and (v) neither the Administrative Agent nor any Lender has provided
or will provide any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby and the Loan Parties have consulted and will consult their own legal, accounting, regulatory,
and tax advisors to the extent it deems appropriate. The matters set forth in this Agreement and
the other Loan Documents reflect an arm’s-length commercial transaction between the Loan Parties,
on the one hand, and the Administrative Agent and the Lenders, on the other hand. The Borrowers
agree that the Loan Parties shall not assert any claims that any Loan Party may have against the
Administrative Agent or any Lender based on any breach or alleged breach of fiduciary duty.




[Signature Pages Follow]




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




	 	 	 	 	 
	 	MYLAN LABORATORIES INC.

 	 
	 	By:  	/s/ Edward J. Borkowski
 	 
	 	 	Name:  	Edward J. Borkowski 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	MYLAN LUXEMBOURG 5 S.A R.L.

 	 
	 	By:  	/s/ Kristin A. Kolesar
 	 
	 	 	Name:  	Kristin A. Kolesar 	 
	 	 	Title:  	Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., individually as a Lender and as Administrative Agent

 	 
	 	By:  	/s/ Lee P. Brennan
 	 
	 	 	Name:  	Lee P Brennan 	 
	 	 	Title:  	Senior Vice President 	 



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	 	MERRILL LYNCH CAPITAL CORPORATION, individually as a Lender

 	 
	 	By:  	/s/ Michael E. O’Brien
 	 
	 	 	Name:  	Michael E. O’Brien 	 
	 	 	Title:  	Vice President 	 



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	 	CITICORP NORTH AMERICA, INC., as a Lender

 	 
	 	By:  	/s/ John Peruzzi
 	 
	 	 	Name:  	John Peruzzi 	 
	 	 	Title:  	Vice President 	 
	 
	 	CITIBANK, N.A., as a Lender

 	 
	 	By:  	/s/ John Peruzzi
 	 
	 	 	Name:  	John Peruzzi 	 
	 	 	Title:  	Vice President 	 



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	 	GOLDMAN SACHS CREDIT PARTNERS L.P., 
as a Lender

 	 
	 	By:  	/s/ Bruce H. Mendelsohn
 	 
	 	 	Name:  	Bruce H. Mendelsohn 	 
	 	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Chi-Cheng Chen
 	 
	 	 	Name:  	Chi-Cheng Chen 	 
	 	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, as a Lender

 	 
	 	By:  	/s/ J. F. Todd
 	 
	 	 	Name:  	J. F. Todd 	 
	 	 	Title:  	Managing Director 	 
	 




 












 





	 	 	 	 	 
	 	CALYON NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Attila Coach
 	 
	 	 	Name:  	Attila Coach 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Thomas Randolph
 	 
	 	 	Name:  	Thomas Randolph 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Lender

 	 
	 	By:  	/s/ Robert S. Taylor, Jr.
 	 
	 	 	Name:  	Robert S. Taylor, Jr. 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Barbara Peters
 	 
	 	 	Name:  	Barbara Peters 	 
	 	 	Title:  	Assistant Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIFTH THIRD BANK, as a Lender

 	 
	 	By:  	/s/ Jim Janovsky
 	 
	 	 	Name:  	Jim Janovsky 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD., as a Lender

 	 
	 	By:  	/s/ Raymond Ventura
 	 
	 	 	Name:  	Raymond Ventura 	 
	 	 	Title:  	Deputy General Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	NATIONAL CITY BANK, as a Lender

 	 
	 	By:  	/s/ Susan J. Dimmick
 	 
	 	 	Name:  	Susan J. Dimmick 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK, as a Lender

 	 
	 	By:  	/s/ John W. Teasley
 	 
	 	 	Name:  	John W. Teasley 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



SCHEDULE 1.01A




APPLICABLE RATE




          The “Applicable Rate” means,




          (a) prior to the Applicable Rate Adjustment Trigger Date, (i) 3.25%, in the case of
Eurocurrency Term Loans, (ii) 2.25%, in the case of ABR Term Loans, (iii) 2.75%, in the case of
Eurocurrency Revolving Loans, (iv) 1.75%, in the case of the ABR Revolving Loans and Swingline
Loans, and (v) 0.50%, in the case of facility fees; and




          (b) from and after the Applicable Rate Adjustment Trigger Date, the initial Applicable Rate
for each Type of Loan and the facility fees shall be as follows, based on the Initial Corporate
Ratings (the “Initial Rate”):




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Eurocurrency	 	 	 	 	 	Eurocurrency	 	ABR Revolving Loans	 	 
	Status:	 	Term Loans	 	ABR Term Loans	 	Revolving Loans	 	and Swingline Loans	 	Facility Fee
	Category I Status
	 	 	3.25	%	 	 	2.25	%	 	 	2.75	%	 	 	1.75	%	 	 	0.50	%
	Category II Status
	 	 	3.50	%	 	 	2.50	%	 	 	3.00	%	 	 	2.00	%	 	 	0.50	%
	Category III Status
	 	 	4.00	%	 	 	3.00	%	 	 	3.50	%	 	 	2.50	%	 	 	0.50	%





; provided that, after the Applicable Rate Adjustment Trigger Date, the Applicable Rate
with respect to U.S. Tranche A Term Loans, Revolving Loans and Swingline Loans shall be subject to
adjustment following each date of delivery of financial statements of the Company pursuant to
Section 5.01(a) or (b) (“Financials”), based on the applicable Initial Rates set forth
above and the Consolidated Leverage Ratio, as follows:




Applicable Rates




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurocurrency	 	ABR	 	 	 	ABR	 	 
	 	 	Consolidated	 	U.S. Tranche A	 	U.S. Tranche A	 	Eurocurrency	 	Revolving Loans	 	 
	Level	 	Leverage Ratio:	 	Term Loans	 	Term Loans	 	Revolving Loans	 	and Swingline Loans	 	Facility Fee
	1

	 	Greater than 6.0x
	 	Initial Rate
	 	Initial Rate
	 	Initial Rate
	 	Initial Rate
	 	Initial Rate

	2

	 	Less than or equal to
6.0x but greater than
4.5x
	 	Initial Rate
minus 0.25%
	 	Initial Rate
minus 0.25%
	 	Initial Rate
minus 0.25%
	 	Initial Rate
minus 0.25%
	 	Initial Rate

	3

	 	Less than or equal to
4.5x but greater than
3.5x
	 	Initial Rate

minus 0.50%
	 	Initial Rate

minus 0.50%
	 	Initial Rate

minus 0.375%
	 	Initial Rate

minus 0.375%
	 	 	0.375	%
	4

	 	Less than or equal to 3.5x
	 	Initial Rate

minus 0.75%
	 	Initial Rate

minus 0.75%
	 	Initial Rate

minus 0.625%
	 	Initial Rate

minus 0.625%
	 	 	0.375	%






          For purposes of the foregoing:





     (i) if at any time the Company fails to deliver the Financials on or before the date
the Financials are due, Level 1 shall be deemed applicable for the period commencing on the
fifth Business Day after the required date of delivery and ending on the fifth Business Day
after the Financials are actually delivered, after which the Level shall be determined in
accordance with the table above as applicable;



 









 






     (ii) except as otherwise provided in clause (iii) below, adjustments, if any, to the
Level then in effect shall be effective on the fifth Business Day after the Administrative
Agent has received the applicable Financials (it being understood and agreed that each
change in Category shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the next such
change); and




     (iii) notwithstanding the foregoing, Level 1 shall be deemed to be applicable from and
after the Applicable Rate Adjustment Trigger Date until the Administrative Agent’s receipt
of the Financials for the Company’s fiscal quarter ending on or about December 31, 2007, and
adjustments to the Level then in effect shall thereafter be effected in accordance with the
preceding paragraphs.



Definitions:




          “Applicable Rate Adjustment Trigger Date” means the Business Day following the first
day on which both Moody’s and S&P have published the Initial Corporate Ratings.




          “Category I Status” means the circumstance that the Initial Corporate Ratings are at
least B1 from Moody’s and B+ from S&P.




          “Category II Status” means the circumstance that Category 1 Status does not apply and
the Initial Corporate Ratings are at least B2 from Moody’s and B from S&P.




          “Category III Status” means the circumstance that neither Category 1 Status nor
Category 2 Status applies.




          “Initial Corporate Ratings” means the first corporate family credit ratings of the
Company by S&P and Moody’s that are publicly announced by such agencies following the Effective
Date.





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