Credit Agreement dated as of April 19, 2007



 





EXHIBIT
10.6


EXECUTION VERSION


 





CREDIT AGREEMENT




Dated as of April 19, 2007,




Among




KING PHARMACEUTICALS, INC.,




THE LENDERS NAMED HEREIN,




CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Administrative Agent,

as Collateral Agent and

as Swingline Lender,




BANK OF AMERICA, N.A.,




and




UBS SECURITIES LLC,

as Co-Syndication Agents




CITIGROUP GLOBAL MARKETS INC.,




WACHOVIA BANK, NATIONAL ASSOCIATION,




and




THE ROYAL BANK OF SCOTLAND PLC,

as Co-Documentation Agents




U.S. BANK NATIONAL ASSOCIATION,

as Managing Agent




 






CREDIT SUISSE SECURITIES (USA) LLC,

as Sole Lead Arranger and Bookrunner




 












 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Terms Generally
	 	 	21	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	The Credits
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	22	 
	SECTION 2.02. Loans
	 	 	22	 
	SECTION 2.03. Swingline Loans
	 	 	24	 
	SECTION 2.04. Letters of Credit
	 	 	25	 
	SECTION 2.05. Borrowing Procedure
	 	 	30	 
	SECTION 2.06. Evidence of Debt; Repayment of Loans
	 	 	31	 
	SECTION 2.07. Fees
	 	 	31	 
	SECTION 2.08. Interest on Loans
	 	 	33	 
	SECTION 2.09. Default Interest
	 	 	33	 
	SECTION 2.10. Alternate Rate of Interest
	 	 	33	 
	SECTION 2.11. Termination and Reduction of Commitments
	 	 	34	 
	SECTION 2.12. Conversion and Continuation of Borrowings
	 	 	34	 
	SECTION 2.13. Prepayment
	 	 	35	 
	SECTION 2.14. Reserve Requirements; Change in Circumstances
	 	 	36	 
	SECTION 2.15. Change in Legality
	 	 	37	 
	SECTION 2.16. Indemnity
	 	 	38	 
	SECTION 2.17. Pro Rata Treatment
	 	 	39	 
	SECTION 2.18. Sharing of Setoffs
	 	 	39	 
	SECTION 2.19. Payments
	 	 	40	 
	SECTION 2.20. Taxes
	 	 	41	 
	SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate
	 	 	42	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	43	 
	SECTION 3.02. Authorization
	 	 	43	 




i 










 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.03. Enforceability
	 	 	44	 
	SECTION 3.04. Governmental Approvals
	 	 	44	 
	SECTION 3.05. Financial Statements
	 	 	44	 
	SECTION 3.06. No Material Adverse Effect; No Default
	 	 	44	 
	SECTION 3.07. Title to Properties; Possession Under Leases
	 	 	44	 
	SECTION 3.08. Subsidiaries
	 	 	45	 
	SECTION 3.09. Litigation; Compliance with Laws
	 	 	45	 
	SECTION 3.10. Agreements
	 	 	45	 
	SECTION 3.11. Federal Reserve Regulations
	 	 	46	 
	SECTION 3.12. Investment Company Act
	 	 	46	 
	SECTION 3.13. Use of Proceeds
	 	 	46	 
	SECTION 3.14. Tax Returns
	 	 	46	 
	SECTION 3.15. No Material Misstatements
	 	 	46	 
	SECTION 3.16. Employee Benefit Plans
	 	 	46	 
	SECTION 3.17. Environmental Matters
	 	 	47	 
	SECTION 3.18. Insurance
	 	 	47	 
	SECTION 3.19. Pledge Agreement
	 	 	48	 
	SECTION 3.20. Labor Matters
	 	 	48	 
	SECTION 3.21. Solvency
	 	 	48	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Conditions of Lending
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. All Credit Events
	 	 	49	 
	SECTION 4.02. Effective Date
	 	 	49	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Affirmative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Existence; Businesses and Properties
	 	 	52	 
	SECTION 5.02. Obligations and Taxes
	 	 	52	 
	SECTION 5.03. Financial Statements, Reports, etc
	 	 	52	 
	SECTION 5.04. Litigation and Other Notices
	 	 	54	 
	SECTION 5.05. Employee Benefits
	 	 	54	 
	SECTION 5.06. Maintaining Records; Access to Properties and Inspections
	 	 	54	 
	SECTION 5.07. Use of Proceeds
	 	 	55	 
	SECTION 5.08. Compliance with Environmental Laws
	 	 	55	 
	SECTION 5.09. Compliance with Laws
	 	 	55	 
	SECTION 5.10. Further Assurances
	 	 	55	 




ii 








 





	 	 	 	 	 
	 	 	Page	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Negative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	55	 
	SECTION 6.02. Liens
	 	 	56	 
	SECTION 6.03. Sale and Lease-Back Transactions
	 	 	58	 
	SECTION 6.04. Investments, Loans and Advances
	 	 	58	 
	SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions
	 	 	59	 
	SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends
	 	 	60	 
	SECTION 6.07. Transactions with Affiliates
	 	 	61	 
	SECTION 6.08. Business of Borrower and Subsidiaries
	 	 	62	 
	SECTION 6.09. Fiscal Year
	 	 	62	 
	SECTION 6.10. Leverage Ratio
	 	 	62	 
	SECTION 6.11. Consolidated Interest Expense Coverage Ratio
	 	 	62	 
	SECTION 6.12. Consolidated Net Worth
	 	 	62	 
	SECTION 6.13. Amendment of Material Documents
	 	 	62	 
	SECTION 6.14. Prepayments, Redemptions and Repurchases of Debt
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Events of Default
	 	 	 	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	The Administrative Agent and the Collateral Agent
	 	 	 	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	68	 
	SECTION 9.02. Survival of Agreement
	 	 	69	 
	SECTION 9.03. Binding Effect
	 	 	69	 
	SECTION 9.04. Successors and Assigns
	 	 	69	 
	SECTION 9.05. Expenses; Indemnity
	 	 	73	 
	SECTION 9.06. Right of Setoff
	 	 	74	 
	SECTION 9.07. APPLICABLE LAW
	 	 	74	 
	SECTION 9.08. Waivers; Amendments
	 	 	75	 
	SECTION 9.09. Interest Rate Limitation
	 	 	76	 
	SECTION 9.10. Entire Agreement
	 	 	76	 
	SECTION 9.11. WAIVER OF JURY TRIAL
	 	 	76	 




iii 








 





	 	 	 	 	 
	 	 	Page	 
	SECTION 9.12. Severability
	 	 	76	 
	SECTION 9.13. Counterparts
	 	 	77	 
	SECTION 9.14. Headings
	 	 	77	 
	SECTION 9.15. Jurisdiction; Consent to Service of Process
	 	 	77	 
	SECTION 9.16. Confidentiality; Material Non-Public Information
	 	 	77	 
	SECTION 9.17. Releases of Guarantors and Collateral
	 	 	79	 
	SECTION 9.18. Patriot Act
	 	 	80	 
	SECTION 9.19. No Fiduciary Duty
	 	 	80	 
	SECTION 9.20. Waiver of Notice Period in connection with Termination of the Commitments under the Existing Credit Agreement
	 	 	80	 




iv 








 





	 	 	 
	SCHEDULES:
	 	 
	 
	Schedule 1.01(a)

	 	Guarantors
	Schedule 1.01(b)

	 	Investment Policy
	Schedule 1.01(c)

	 	Existing Letters of Credit
	Schedule 2.01

	 	Commitments
	Schedule 3.08

	 	Subsidiaries
	Schedule 3.09

	 	Litigation
	Schedule 3.17

	 	Environmental Matters
	Schedule 3.18

	 	Insurance
	Schedule 6.01

	 	Existing Indebtedness
	Schedule 6.02

	 	Existing Liens
	Schedule 6.04(a)

	 	Existing Investments
	 
	EXHIBITS:
	 	 
	 
	Exhibit A

	 	Form of Administrative Questionnaire
	Exhibit B

	 	Form of Assignment and Acceptance
	Exhibit C

	 	Form of Borrowing Request
	Exhibit D

	 	Form of Guarantee Agreement
	Exhibit E

	 	Form of Pledge Agreement
	Exhibit F

	 	Form of Indemnity, Subrogation and Contribution Agreement
	Exhibit G-1

	 	Form of Opinion of James Elrod, Esq., General Counsel of the Borrower
	Exhibit G-2

	 	Form of Opinion of Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., special counsel to the Borrower
	Exhibit G-3

	 	Form of Opinion of Bass, Berry & Sims PLC, Tennessee counsel to the Borrower
	Exhibit H

	 	Form of Promissory Note




v 








 



 



     CREDIT AGREEMENT dated as of April 19, 2007 (as amended, supplemented
or otherwise modified from time to time, this “Agreement”), among
KING PHARMACEUTICALS, INC., a Tennessee corporation (the
“Borrower”); the Lenders (as defined in Article I); CREDIT SUISSE,
a bank organized under the laws of Switzerland, acting through its Cayman
Islands Branch, as administrative agent and collateral agent for the
Lenders (in such capacity, the “Administrative Agent” and the
“Collateral Agent”), and as swingline lender (in such capacity,
the “Swingline Lender”), Bank of America, N.A. and UBS Securities
LLC, as co-syndication agents (in such capacity, “Co-Syndication
Agents”); Citigroup Global Markets Inc., Wachovia Bank, National
Association and The Royal Bank of Scotland plc, as co-documentation agents
(in such capacity, the “Co-Documentation Agents”); U.S. Bank
National Association, as managing agent (in such capacity, the
“Managing Agent”); and the Issuing Banks (as defined in Article
I).



          The Borrower has requested the Lenders to extend credit in the form of Revolving Loans at any
time and from time to time on or after the Effective Date and prior to the Maturity Date, in an
aggregate principal amount at any time outstanding not in excess of $475,000,000. The Borrower has
requested the Swingline Lender to extend credit, at any time and from time to time prior to the
Maturity Date, in the form of Swingline Loans in an aggregate principal amount at any time
outstanding not in excess of $20,000,000. The Borrower has requested that the Issuing Banks issue
letters of credit, in an aggregate face amount at any time outstanding not in excess of $30,000,000
to support payment obligations incurred in the ordinary course of business by the Borrower and the
Subsidiaries. The proceeds of the Revolving Loans and of the Swingline Loans are to be used by the
Borrower and the Subsidiaries to provide working capital and for other general corporate purposes,
including permitted acquisitions and the refinancing of amounts outstanding under the Existing
Credit Agreement, and the Letters of Credit are to be used by the Borrower and the Subsidiaries for
general corporate purposes. The Lenders, the Swingline Lender and the Issuing Banks have agreed to
extend such credit on the terms and subject to the conditions set forth herein.




          Accordingly, the parties hereto hereby agree as follows:




ARTICLE I




Definitions




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




          “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.










 



 




 2




          “ABR Loan” shall mean any ABR Revolving Loan or Swingline Loan.




          “ABR Revolving Loan” shall mean any Revolving Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.




          “Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for
such Interest Period and (b) Statutory Reserves.




          “Administrative Agent” shall have the meaning assigned to such term in the preamble to
this Agreement.




          “Administrative Agent Fees” shall have the meaning assigned to such term in Section
2.07(b).




          “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form
of Exhibit A.




          “Affiliate” shall mean, when used 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.




          “Aggregate Revolving Credit Exposure” shall mean the aggregate amount of the Lenders’
Revolving Credit Exposures.




          “Alternate Base Rate” shall mean, 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%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base
Rate shall be determined without regard to clause (b) of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective Rate, as the case
may be.




          “Applicable Percentage” shall mean, for any day, with respect to any Eurodollar
Revolving Loan or ABR Loan or with respect to the Commitment Fees, as the case may be, the
applicable percentage set forth below under the caption “Eurodollar Spread”, “ABR Spread” or “Fee
Percentage”, as the case may be, based upon the Leverage Ratio as of the fiscal quarter end next
preceding the most recent Determination Date; provided that until the first Determination
Date occurring after the Effective Date, the Applicable Percentage shall be determined by reference
to Category 1:










 



3


	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Eurodollar	 	ABR	 	Fee
	Leverage Ratio	 	Spread	 	Spread	 	Percentage
	Category 1
	 	 	 	 	 	 	 	 	 	 	 	 
	Less than 1.25 to 1.00
	 	 	0.875	%	 	 	0.000	%	 	 	0.200	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 2
	 	 	 	 	 	 	 	 	 	 	 	 
	Less than 1.75 to 1.00 but greater
than or equal to 1.25 to 1.00
	 	 	1.000	%	 	 	0.000	%	 	 	0.250	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3
	 	 	 	 	 	 	 	 	 	 	 	 
	Less than 2.25 to 1.00 but greater
than or equal to 1.75 to 1.00
	 	 	1.125	%	 	 	0.125	%	 	 	0.275	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 4
	 	 	 	 	 	 	 	 	 	 	 	 
	Less than 2.75 to 1.00 but greater
than or equal to 2.25 to 1.00
	 	 	1.250	%	 	 	0.250	%	 	 	0.300	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 5
	 	 	 	 	 	 	 	 	 	 	 	 
	Greater than or equal to 2.75 to 1.00
	 	 	1.500	%	 	 	0.500	%	 	 	0.350	%





Notwithstanding the foregoing, at any time when the Borrower has failed to deliver the
financial statements and certificates required by Section 5.03(a), (b) or (c), and at any time
after the occurrence and during the continuance of an Event of Default, the Applicable Percentage
shall be determined by reference to Category 5.




          “Arranger” shall mean Credit Suisse Securities (USA) LLC.




          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee, and accepted by the Administrative Agent, in the form of Exhibit B
or such other form as shall be approved by the Administrative Agent.




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




          “Borrower” shall have the meaning assigned to such term in the preamble to this
Agreement.




          “Borrowing” shall mean a group of Loans of a single Class and Type made by the Lenders
on a single date and as to which a single Interest Period is in effect.




          “Borrowing Request” shall mean a request by the Borrower in accordance with the terms
of Section 2.05 and substantially in the form of Exhibit C.




          “Breakage Event” shall have the meaning assigned to such term in Section 2.16.




          “Business Day” shall mean any day other than a Saturday, Sunday or day on which banks
in New York City, New York are authorized or required by law to close; provided,
however, that when used in connection with a Eurodollar Revolving Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the
London interbank market.










 



4




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




          A “Change in Control” shall be deemed to have occurred if (a) any person or group
(within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934, as amended, as in effect
on the date hereof) shall own directly or indirectly, beneficially or of record, shares
representing more than 20% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Borrower; (b) a majority of the seats (other than vacant seats) on
the board of directors of the Borrower shall at any time be occupied by persons who were neither
(i) nominated by the board of directors of the Borrower, nor (ii) appointed by directors so
nominated; or (c) any change in control (or similar event, however denominated) with respect to the
Borrower or any of the Subsidiaries shall occur under and as defined in any indenture or agreement
to which the Borrower or any of the Subsidiaries is a party in respect of Indebtedness of the
Borrower or any Subsidiary the aggregate principal amount of which exceeds $10,000,000.




          “Charges” shall have the meaning assigned to such term in Section 9.09.




          “Class”, when used in respect of any Loan or Borrowing, shall refer to whether such
Loan or Borrowing shall be a Revolving Loan or Borrowing or a Swingline Loan, and, in the case of a
Revolving Loan or Borrowing and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Credit Commitment or Swingline Commitment.




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




          “Collateral” shall mean all the “Collateral” as defined in any Security Document.




          “Collateral Agent” shall have the meaning assigned to such term in the preamble to
this Agreement.




          “Collateral Requirement” shall mean, at any time on and after the Effective Date
(other than at any time when security interests under the Security Documents are not required to be
in effect under Section 9.17), that the Pledge Agreement (or a supplement referred to in Section 23
thereof) shall have been duly executed by the Borrower and each Guarantor, shall have been
delivered to the Collateral Agent and shall be in full force and effect, and all the outstanding
Equity Interests in Subsidiaries owned by the Borrower or any Guarantor shall have been duly and
validly pledged thereunder to the Collateral Agent for the ratable benefit of the Secured Parties
and certificates representing such Equity Interests in Subsidiaries, accompanied by instruments of
transfer and stock powers endorsed in blank, shall be in the actual







 



5




possession of the Collateral Agent; provided that the Borrower and the Guarantors
shall not be required to pledge more than 65% of the Equity Interests of any Foreign Subsidiary.




          “Commitment” shall mean a Revolving Credit Commitment or Swingline Commitment.




          “Commitment Fee” shall have the meaning assigned to such term in Section 2.07(a).




          “Confidential Information Memorandum” shall mean the Confidential Information
Memorandum of the Borrower dated March 2007.




          “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such
period, plus, without duplication and to the extent deducted from revenues in determining
Consolidated Net Income, the sum for such period of (a) the aggregate amount of Consolidated
Interest Expense, (b) the aggregate amount of letter of credit fees paid, (c) the aggregate amount
of income tax expense, (d) all amounts attributable to depreciation and amortization expense
(including amortization of deferred financing costs), (e) all extraordinary charges, (f) all other
non-cash charges, and (g) non-recurring special cash charges in respect of acquisitions in an
aggregate amount for any such acquisition not to exceed $50,000,000, and minus, without
duplication and to the extent added to revenues in determining Consolidated Net Income for such
period, all extraordinary gains during such period, all as determined on a consolidated basis with
respect to the Borrower and the Subsidiaries in accordance with GAAP.




          “Consolidated Interest Expense” shall mean, for any period, the interest expense, both
expensed and capitalized (including the interest component in respect of Capital Lease
Obligations), accrued or paid by the Borrower and the Subsidiaries during such period, determined
on a consolidated basis in accordance with GAAP. For purposes of the foregoing, interest expense
shall be determined exclusive of deferred financing costs and the amortization thereof and after
giving effect to any net payments made or received by the Borrower and the Subsidiaries with
respect to Hedging Agreements.




          “Consolidated Interest Expense Coverage Ratio” shall mean, for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such period.




          “Consolidated Net Income” shall mean, for any period, net income or loss of the
Borrower and the Subsidiaries for such period, as determined on a consolidated basis in accordance
with GAAP, provided that there shall be excluded (a) the income of any person in which any
other person (other than the Borrower or any of the Subsidiaries or any director holding qualifying
shares in compliance with applicable law) has a joint equity interest, except to the extent of the
amount of dividends or other distributions actually paid to the Borrower or any of the Subsidiaries
by such person during such period, (b) the loss of any person (other than a consolidated
Subsidiary) in which any other person (other than the Borrower and any of the Subsidiaries or any
director holding







 



6




qualifying shares in compliance with applicable law) has a joint interest, except to the
extent of the aggregate investment of the Borrower and any of the Subsidiaries in such person
during such period, and (c) the income (or loss) of any person accrued prior to the date it becomes
a Subsidiary or is merged into or consolidated with the Borrower or any of the Subsidiaries or the
date that person’s assets are acquired by the Borrower or any of the Subsidiaries.




          “Consolidated Net Worth” shall mean, as at any date of determination, the consolidated
stockholders’ equity of the Borrower and the Subsidiaries, as determined on a consolidated basis in
accordance with GAAP.




          “Control” shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a person, whether through the ownership of
voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall
have meanings correlative thereto.




          “Convertible Note Indenture” shall mean the Indenture dated as of March 29, 2006,
between King Pharmaceuticals, Inc., the subsidiary guarantors party thereto and The Bank of New
York Trust Company, N.A., as trustee.




          “Convertible Notes” shall mean 11/4% convertible senior notes
due April 1, 2026, issued pursuant to the Convertible Note Indenture.




          “Co-Documentation Agent” shall have the meaning assigned to such term in the preamble
to this Agreement.




          “Co-Syndication Agent” shall have the meaning assigned to such term in the preamble to
this Agreement.




          “Credit Event” shall have the meaning assigned to such term in Section 4.01.




          “Default” shall mean any event or condition which upon notice, lapse of time or both
would constitute an Event of Default.




          “Designated Indebtedness” shall mean the Borrower’s senior unsecured long-term,
non-credit enhanced indebtedness for borrowed money.




          “Determination Date” shall mean each day that is the 45th day after the end
of any of the first three fiscal quarters, or the 90th day after the end of the final
fiscal quarter, in any fiscal year of the Borrower.




          “dollars” or “$” shall mean lawful money of the United States of America.




          “Domestic Subsidiary” shall mean a Subsidiary incorporated or organized under the laws
of the United States of America, any State thereof or the District of Columbia.










 



7




          “Effective Date” shall mean the date on which the conditions set forth in Section 4.02
are satisfied (or waived in accordance with Section 9.08).




          “environment” shall mean ambient air, surface water and groundwater (including potable
water, navigable water and wetlands), the land surface or subsurface strata or as otherwise defined
in any Environmental Law.




          “Environmental Claim” shall mean any written allegation, notice of violation, claim,
demand, order, directive, cost recovery action or other cause of action by, or on behalf of, any
Governmental Authority or any person for damages, injunctive or equitable relief, personal injury
(including sickness, disease or death), Remedial Action costs, tangible or intangible property
damage, natural resource damages, nuisance, pollution, any adverse effect on the environment caused
by any Hazardous Material, or for fines, penalties or restrictions, resulting from or based upon
(a) the existence, or the continuation of the existence, of a Release (including sudden or
non-sudden, accidental or non-accidental Releases), (b) exposure to any Hazardous Material, (c) the
presence, use, handling, generation, transportation, storage, treatment or disposal of any
Hazardous Material or (d) the violation or alleged violation of any Environmental Law or
Environmental Permit.




          “Environmental Law” shall mean any and all applicable present and future treaties,
laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety matters, including,
but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 U.S.C. § 9601 et seq. (collectively “CERCLA”), the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and the Hazardous
and Solid Waste Amendments of 1984, 42 U.S.C. § 6901 et seq., the Federal Water Pollution Control
Act, as amended, 33 U.S.C. § 1251 et seq., the Clean Air Act of 1970, as amended 42 U.S.C. § 7401
et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. § 2601 et seq., the Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. § 651 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq., the Safe Drinking Water Act of
1974, as amended, 42 U.S.C. § 300(f) et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
§ 5101 et seq., and any similar or implementing state or local law, and all amendments or
regulations promulgated under any of the foregoing.




          “Environmental Permit” shall mean any permit, approval, authorization, certificate,
license, variance, filing or permission required by or from any Governmental Authority pursuant to
any Environmental Law.




          “Equity Interests” shall mean 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.










 



8




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same
may be amended from time to time.




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




          “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder, with respect to a Plan; (b) the adoption of any
amendment to a Plan that would require the provision of security pursuant to Section 401(a)(29) of
the Code or Section 307 of ERISA; (c) 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; (d) 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; (e) the
incurrence of any liability under Title IV of ERISA with respect to the termination of any Plan or
the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan
or Multiemployer Plan; (f) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to the intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (g) the receipt by the Borrower or any ERISA Affiliate of
any notice concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; and (h) the occurrence of a “prohibited transaction” with respect to which the
Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975
of the Code) with respect to which the Borrower or any such Subsidiary could otherwise have or
incur material liabilities.




          “Eurodollar Borrowing” shall mean a Borrowing comprised of Eurodollar Revolving Loans.




          “Eurodollar Revolving Loan” shall mean any Revolving Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.




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




          “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located (provided, however, that none of any Lender or
Issuing Bank or any other recipient shall be deemed to be located in any jurisdiction solely as a
result of receiving







 



9




any payments under, or taking any other action related to, any loan under this or any other
agreement), (b) any branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under Section 2.21(a)), any
withholding tax that (i) is in effect and would apply to amounts payable to such Foreign Lender 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 Borrower with respect to any withholding tax pursuant to Section 2.20(a) or (ii) is
attributable to such Foreign Lender’s failure to comply with Section 2.20(e).




          “Existing Credit Agreement” shall mean the Credit Agreement dated as of April 23,
2002, as amended by the First Amendment dated as of March 22, 2006, among the Borrower, the lenders
named therein and Credit Suisse, as administrative agent and collateral agent.




          “Existing Letters of Credit” means the existing letters of credit issued under the
Existing Credit Agreement and listed on Schedule 1.01(c). The Borrower shall be deemed to
have requested the issuance of each Existing Letter of Credit for purposes hereof.




          “Federal Funds Effective Rate” shall mean, 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 the day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




          “Fee Letter” shall mean the Fee Letter dated March 5, 2007, among the Borrower, the
Administrative Agent and the Arranger.




          “Fees” shall mean the Commitment Fees, the Administrative Agent Fees, the L/C
Participation Fees and the Issuing Bank Fees.




          “Financial Officer” of any corporation shall mean the chief financial officer,
principal accounting officer, treasurer or controller of such corporation.




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




          “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.










 



10




          “Fronting Fee” shall have the meaning assigned to such term in Section 2.07(c).




          “GAAP” shall mean United States generally accepted accounting principles applied on a
consistent basis.




          “Governmental Authority” shall mean any Federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory body.




          “Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).




          “Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of
such person guaranteeing or having the economic effect of guaranteeing any Indebtedness of any
other person (the “primary obligor”) in any manner, whether directly or indirectly, and
including any obligation of such person, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Indebtedness, (b) to
purchase or lease property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (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; provided, however, that the term
“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of
business.




          “Guarantee Agreement” shall mean the Guarantee Agreement, substantially in the form of
Exhibit D, made by the Guarantors in favor of the Collateral Agent for the benefit of the Secured
Parties.




          “Guarantee Requirement” shall mean, at any time, that (a) the Guarantee Agreement (or
a supplement referred to in Section 20 thereof) shall have been executed by the Borrower and each
Significant Subsidiary existing from time to time, shall have been delivered to the Collateral
Agent and shall be in full force and effect and (b) the Indemnity, Subrogation and Contribution
Agreement (or a supplement referred to in Section 12 thereof) shall have been executed by the
Borrower and each other Loan Party, shall have been delivered to the Collateral Agent and shall be
in full force and effect.




          “Guarantors” shall mean each person listed on Schedule 1.01(a) and each other
person that becomes party to a Guarantee Agreement as a Guarantor, and the permitted successors and
assigns of each such person.




          “Hazardous Materials” shall mean all explosive or radioactive substances or wastes,
hazardous or toxic substances or wastes, pollutants, solid, liquid or gaseous wastes, including
petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls (“PCBs”) or PCB-containing materials or equipment, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.










 



11




          “Health Care Laws” shall mean any and all applicable current and future treaties,
laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered into by the Food and Drug Administration, the
Center for Medicare and Medicaid Services, the Department of Health and Human Services
(“HHS”), the Office of Inspector General of HHS, the Drug Enforcement Administration or any
other Governmental Authority (including any professional licensing laws, certificate of need laws
and state reimbursement laws), relating in any way to the manufacture, distribution, marketing,
sale, supply or other disposition of any product or service of the Borrower or any Subsidiary, the
conduct of the business of the Borrower or any Subsidiary, the provision of health care services
generally, or to any relationship among the Borrower and the Subsidiaries, on the one hand, and
their suppliers and customers and patients and other end-users of their products and services, on
the other hand.




          “Hedging Agreement” shall mean any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement. The “principal amount” of any Hedging
Agreement at any time shall be deemed to be the aggregate amount of the payments that would be
required to be made by the Borrower or any Subsidiary in the event of any early termination at such
time of such Hedging Agreement.




          “Inactive Subsidiary” shall mean, at any time, any subsidiary of the Borrower that at
such time is not engaged in any business and has assets with a book value not in excess of
$1,000,000.




          “Indebtedness” of any person shall mean, 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 upon which interest charges are
customarily paid, (d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person, (e) all obligations
of such person issued or assumed as the deferred purchase price of property or services (excluding
trade accounts payable and accrued obligations incurred in the ordinary course of business), (f)
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 obligations secured thereby have been assumed, (g) all Guarantees by
such person of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i) all
obligations of such person in respect of Hedging Agreements and (j) all obligations of such person
as an account party in respect of letters of credit and bankers’ acceptances. The Indebtedness of
any person shall include the Indebtedness of any partnership in which such person is a general
partner.




          “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.




          “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).










 



12




          “Indemnity, Subrogation and Contribution Agreement” shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit F, among the Borrower,
the Guarantors and the Collateral Agent.




          “Information” shall have the meaning assigned to such term in Section 9.16(a).




          “Interest Payment Date” shall mean, with respect to any Loan, (i) each day that is the
last day of an Interest Period applicable to the Borrowing of which such Loan is a part and, in the
case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each
day prior to the last day of such Interest Period that occurs at intervals of three months’
duration after the first day of such Interest Period and (ii) the date of any prepayment of such
Borrowing or conversion of such Borrowing to a Borrowing of a different Type.




          “Interest Period” shall mean (a) as to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing or on the last day of the preceding Interest Period applicable
thereto and ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 (or, if agreed to by
each Lender, 9 or 12) months thereafter, as the Borrower may elect, and (b) as to any ABR Borrowing
(excluding a Swingline Loan), the period commencing on the date of such Borrowing or on the last
day of the preceding Interest Period applicable thereto and ending on the earlier of (i) the next
succeeding last Business Day of March, June, September and December and (ii) the Maturity Date;
provided, however, that, in the case of a Eurodollar Borrowing, if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to but excluding the
last day of such Interest Period.




          “Issuing Bank” shall mean, at any time, Credit Suisse and each other person that is
listed on Schedule 2.04 or that shall have become an Issuing Bank hereunder as provided in
Section 2.04(j) (other than any person that shall have ceased to be an Issuing Bank as provided in
Section 2.04(i)), each in its capacity as an issuer of Letters of Credit hereunder.




          “Issuing Bank Agreement” shall have the meaning assigned to such term in Section
2.04(j).




          “Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.07(c).




          “L/C Commitment” shall mean, as to each Issuing Bank, the commitment of such Issuing
Bank to issue Letters of Credit pursuant to Section 2.04. The initial amount of each Issuing
Bank’s L/C Commitment is specified on Schedule 2.04 or in the Issuing Bank Agreement
pursuant to which it shall have become an Issuing Bank.










 



13




          “L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank
pursuant to a Letter of Credit.




          “L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of
all outstanding Letters of Credit at such time plus (b) the aggregate principal amount of
all L/C Disbursements that have not yet been reimbursed at such time. The L/C Exposure of any
Lender at any time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such time.




          “L/C Participation Fee” shall have the meaning assigned to such term in Section
2.07(c).




          “Lenders” shall mean the financial institutions listed on Schedule 2.01 and
any other financial institution that has become a party hereto pursuant to an Assignment and
Acceptance, other than any such financial institution that has ceased to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context clearly indicates otherwise, the term
“Lenders” shall include the Swingline Lender.




          “Letter of Credit” shall mean (i) any letter of credit issued pursuant to Section 2.04
and (ii) the Existing Letters of Credit.




          “Leverage Ratio” shall mean, at any time, the ratio of (a) Total Funded Debt at such
time to (b) Consolidated EBITDA for the most recently ended period of four fiscal quarters, all as
determined on a consolidated basis in accordance with GAAP.




          “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m.,
London time, on the date which is two Business Days prior to the beginning of such Interest Period
by reference to the British Bankers’ Association Interest Settlement Rates for deposits in dollars
(as set forth by any service selected by the Administrative Agent which has been nominated by the
British Bankers’ Association as an authorized information vendor for the purpose of displaying
rates) for a period equal to such Interest Period, provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the
“LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent
equal to the average of the rates per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
at which deposits in dollars are offered for such Interest Period by two major banks selected by
the Administrative Agent in the London interbank market at approximately 11:00 a.m., London time,
on the date two Business Days prior to the beginning of such Interest Period. In the event that
such rate is not available at such time for any reason, then the “LIBO Rate” with respect
to such Eurodollar Borrowing for such Interest Period shall be the rate (rounded upwards, if
necessary, to the next 1/16 of 1%) at which dollar deposits of an amount equal to the applicable
Loans and for a maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period.










 



14




          “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.




          “Loan Documents” shall mean this Agreement, the Letters of Credit, the Security
Documents and any promissory notes issued pursuant to Section 2.06.




          “Loan Parties” shall mean the Borrower and each Subsidiary that is a party to any
Security Document.




          “Loans” shall mean the Revolving Loans and the Swingline Loans.




          “Managing Agent” shall have the meaning assigned to such term in the preamble to this
Agreement.




          “Margin Stock” shall have the meaning assigned to such term in Regulation U.




          “Material Adverse Effect” shall mean one or more events, changes or effects which,
individually or in the aggregate, could reasonably be expected to have a material adverse effect on
(a) the business, assets, results of operations, financial condition or prospects of the Borrower
and the Subsidiaries, taken as a whole or (b) the validity or enforceability of any of the Loan
Documents or any other documents entered into in connection with the Transactions or other
transactions contemplated thereby or the rights, remedies and benefits available to the parties
thereunder.




          “Maturity Date” shall mean April 19, 2012.




          “Material Foreign Subsidiary” means any Foreign Subsidiary (a) the consolidated
revenues of which for the most recent period of four fiscal quarters of the Borrower for which
audited financial statements have been delivered pursuant to Section 5.01 were greater than 2.5% of
the Borrower’s total consolidated revenues for such period or (ii) the consolidated assets of which
as of the end of such period were greater than 2.5% of the Borrower’s total consolidated assets as
of such date.




          “Maximum Rate” shall have the meaning assigned to such term in Section 9.09.




          “Moody’s” shall mean Moody’s Investors Service, Inc.




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




          “Non-Consenting Lender” means any Lender that withholds its consent to any proposed
amendment, modification or waiver that cannot become effective without







 



15




the consent of such Lender under Section 9.08, and that has been consented to by the Required
Lenders.




          “Obligations” shall mean all obligations defined as “Obligations” in the
Security Documents.




          “Other Taxes” shall mean 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.




          “Patriot Act” shall have the meaning assigned to such term in Section 9.18.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.




          “Permitted Investments” shall mean:





     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to
the extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;




     (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, a credit rating from S&P of at
least A-2 or Moody’s of at least P-2;




     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within one year of the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of not less than
$500,000,000;




     (d) repurchase agreements fully collateralized by United States government securities;




     (e) debt obligations, including auction rate securities, of any State of the United
States, of any county or other municipal government subdivision of any State of the United
States or of any domestic corporation with maturities of one year or less from the date of
acquisition and having, at such date of acquisition, a credit rating from S&P of at least
AA or from Moody’s of at least Aa2;




     (f) U.S. dollar denominated debt obligations of any foreign corporation with
maturities of one year or less from the date of acquisition and









 



16



having, at such date of acquisition, a credit rating from S&P of at least AAA or from
Moody’s of at least Aaa;




     (g) asset backed securities, collateralized mortgage backed security and agency
residential mortgages having, at the date of acquisition, a credit rating from S&P of at
least AAA or from Moody’s of at least Aaa;




     (h) investments in money market funds substantially all of whose assets are comprised
of securities of the types described in clauses (a) through (g) above;




     (i) other investments which, at the time of acquisition, were made in compliance with
the investment policy of the Borrower attached hereto as Schedule 1.01(b);




     (j) overnight deposits and demand deposit accounts (in the respective local
currencies) maintained in the ordinary course of business; and




     (k) other investment instruments approved in writing by the Required Lenders.



          “person” shall mean any natural person, corporation, business trust, joint venture,
association, company, partnership or government, or any agency or political subdivision thereof.




          “Plan” shall mean 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 307 of ERISA,
and in respect of which the Borrower 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.




          “Pledge Agreement” shall mean the Pledge Agreement, substantially in the form of
Exhibit E, between the Borrower, each Significant Subsidiary owning capital stock or Indebtedness
of the Borrower or any other Subsidiary and the Collateral Agent for the benefit of the Secured
Parties.




          “Prime Rate” shall mean the rate of interest per annum publicly announced from time to
time by the Administrative Agent as its prime rate in effect at its principal office in New York
City, New York; each change in the Prime Rate shall be effective on the date such change is
publicly announced as being effective.




          “Properties” shall have the meaning assigned to such term in Section 3.17(a).




          “Pro Rata Percentage” of any Lender at any time shall mean the percentage of the Total
Revolving Credit Commitment represented by such Lender’s Revolving Credit Commitment. In the event
the Revolving Credit Commitments shall have been terminated, the Pro Rata Percentages of the
Lenders shall be determined by







 



17




reference to the Revolving Credit Commitments most recently in effect (giving effect to any
assignments pursuant to Section 9.04).




          “Ratings” shall mean the ratings assigned by S&P and Moody’s to the Designated
Indebtedness, or, if no Designated Indebtedness shall be outstanding, the corporate credit ratings
assigned by S&P and Moody’s to the Borrower. If either of such rating agencies shall not have in
effect a rating for the Designated Indebtedness or a corporate credit rating for the Borrower, as
the case may be, such rating agency shall be deemed to have in effect a rating below BBB- or Baa3,
as the case may be.




          “Register” shall have the meaning assigned to such term in Section 9.04(d).




          “Regulation U” shall mean Regulation U of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.




          “Regulation X” shall mean Regulation X of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.




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




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




          “Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating
or migrating of any Hazardous Material in, into, onto or through the environment.




          “Release Conditions” shall have the meaning assigned to such term in Section 9.17.




          “Release Date” shall have the meaning assigned to such term in Section 9.17.




          “Remedial Action” shall mean (a) ”remedial action” as such term is defined in CERCLA,
42 U.S.C. Section 9601(24), and (b) all other actions required by any Governmental Authority or
voluntarily undertaken to: (i) clean up, remove, treat, abate or in any other way address any
Hazardous Material in the environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the environment; or (iii) perform studies and investigations in
connection with, or as a precondition to, clause (i) or (ii) above.










 



18




          “Required Lenders” shall mean, at any time, Lenders having Revolving Loans, L/C
Exposures, Swingline Exposures and unused Revolving Credit Commitments representing a majority of
the sum of all outstanding Revolving Loans, L/C Exposures, Swingline Exposures and unused Revolving
Credit Commitments.




          “Responsible Officer” of any corporation shall mean the chief executive officer, the
president or any Financial Officer of such corporation and any other officer or similar official
thereof responsible for the administration of the obligations of such corporation in respect of
this Agreement.




          “Revolving Borrowing” shall mean a Borrowing comprised of Revolving Loans.




          “Revolving Credit Commitment” shall mean, with respect to each Lender, the commitment
of such Lender to make Revolving Loans hereunder as set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its Revolving Credit Commitment, as
applicable, as the same may be (a) reduced from time to time pursuant to Section 2.11 and (b)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.




          “Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the
aggregate principal amount at such time of all outstanding Revolving Loans of such Lender,
plus the aggregate amount at such time of such Lender’s L/C Exposure, plus the
aggregate amount at such time of such Lender’s Swingline Exposure.




          “Revolving Loans” shall mean the revolving loans made by the Lenders to the Borrower
pursuant to Section 2.01. Each Revolving Loan shall be a Eurodollar Revolving Loan or an ABR
Revolving Loan.




          “S&P” shall mean Standard & Poor’s.




          “Secured Parties” shall have the meaning assigned to such term in the Pledge
Agreement.




          “Security Documents” shall mean the Guarantee Agreement, the Pledge Agreement, the
Indemnity, Subrogation and Contribution Agreement and each of the other instruments and documents
executed and delivered pursuant to any of the foregoing or pursuant to Section 5.10.




          “Significant Subsidiary” shall mean (a) any Subsidiary owning an Equity Interest in a
Significant Subsidiary and (b) any other Subsidiary (i) the consolidated revenues of which for the
most recently ended period of four fiscal quarters were greater than 2.5% of the Borrower’s
consolidated revenues for such period (whether or not such Subsidiary shall have been a Subsidiary
during such period) or (ii) the assets of which as of the last day of such period were greater than
2.5% of the Borrower’s consolidated assets as of such date (whether or not such Subsidiary shall
have been a Subsidiary on such date); provided that, if at any time the aggregate amount of
the consolidated revenues or consolidated assets of all Subsidiaries that are not Significant
Subsidiaries for







 



19




or at the end of any period of four fiscal quarters exceeds 7.5% of the Borrower’s
consolidated revenues for such period or 7.5% of the Borrower’s consolidated assets as of the end
of such period, the Borrower (or, in the event the Borrower has failed to do so within 10 days, the
Administrative Agent) shall designate sufficient Subsidiaries as “Significant Subsidiaries” to
eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement
constitute Significant Subsidiaries. For purposes of making the determinations required by this
definition, revenues and assets of Foreign Subsidiaries shall be converted into dollars at the
rates used in preparing the consolidated financial statements of the Borrower delivered hereunder.
The Significant Subsidiaries on the date hereof are identified in Schedule 3.08 hereto.




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




          “SPC” shall have the meaning assigned to such term in Section 9.04(i).




          “Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board for Eurocurrency Liabilities (as defined in
Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Revolving Loans shall be deemed to constitute Eurocurrency Liabilities
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation
D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.




          “subsidiary” shall mean, with respect to any person (herein referred to as the
“parent”), any corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or more than 50% of the general partnership interests are, at the time
any determination is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.




          “Subsidiary” shall mean any subsidiary of the Borrower; provided that for all
purposes of this Agreement other than Sections 6.09 through 6.12 (and the definitions set forth in
Article I, to the extent employed in connection with such Sections), the term “Subsidiary” shall
exclude all Inactive Subsidiaries.




          “Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans
pursuant to Section 2.03, as the same may be reduced from time to time pursuant to Section 2.11.










 



20




          “Swingline Exposure” shall mean at any time the aggregate principal amount at such
time of all outstanding Swingline Loans. The Swingline Exposure of any Lender at any time shall
equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.




          “Swingline Lender” shall have the meaning assigned to such term in the preamble to
this Agreement.




          “Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section
2.03.




          “Swingline Maturity Date” means, as to any Swingline Loan, the earlier of the Maturity
Date and the date that is 30 days after the date on which such Loan was made.




          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Total Funded Debt” shall mean, as of any date of determination, without duplication,
the aggregate principal amount of Indebtedness of the Borrower and the Subsidiaries outstanding as
of such date, determined on a consolidated basis in accordance with GAAP (other than Indebtedness
of the type referred to in clauses (i) or (j) of the definition of the term “Indebtedness”,
except to the extent of any unreimbursed drawings thereunder); provided that any increase
or decrease in the amount of such Indebtedness attributable solely to the application of SFAS 133
shall be excluded from the computation of Total Funded Debt.




          “Total Revolving Credit Commitment” shall mean, at any time, the aggregate amount of
the Revolving Credit Commitments, as in effect at such time.




          “Transactions” shall have the meaning assigned to such term in Section 3.02.




          “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by
reference to which interest on such Loan or on the Loans comprising such Borrowing is determined.
For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate and the Alternate
Base Rate.




          “Uniform Commercial Code” shall mean the Uniform Commercial Code in effect from time
to time in the State of New York, provided, however, that if by reason of mandatory
provisions of law, the perfection or the effect of perfection or non-perfection of the security
interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, “Uniform Commercial Code” shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or non-perfection.










 



21




          “Wholly Owned Subsidiary” shall mean a Subsidiary of which securities (except for
directors’ qualifying shares) or other ownership interests representing 100% of the equity or 100%
of the ordinary voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, directly or indirectly, by the Borrower or
one or more wholly owned subsidiaries of the Borrower.




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




          SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally
to both 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”. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided herein, (a) any reference in this
Agreement to any Loan Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time, (b) any reference to any statute, regulation or other law
shall be construed (i) as referring to such statute, regulation or other law as from time to time
amended, supplemented or otherwise modified (including by succession of comparable successor
statutes, regulations or other laws) and (ii) to include all official rulings and interpretations
thereunder, (c) any reference herein to any person shall be construed to include such person’s
successors and assigns, (d) 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, (e) the words “assets” or “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 and (f) all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time;
provided, however, that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such provision amended in
accordance herewith. All computations required to be made hereunder to demonstrate pro forma
compliance with any covenant after giving effect to any acquisition, investment, sale, disposition
or similar event shall reflect on a pro forma basis such event and, to the extent applicable, the
historical earnings and cash flows associated with the assets acquired or disposed of and any
related incurrence or reduction of Indebtedness, but shall not take







 



22




into account any projected synergies or similar benefits expected to be realized as a result
of such event; provided that projected synergies or similar benefits may be included to the
extent permitted to be recognized in pro forma statements prepared in accordance with Regulation
S-X under the Securities Act.




ARTICLE II




The Credits




          SECTION 2.01. Commitments. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally and not jointly, to
make Revolving Loans to the Borrower, at any time and from time to time on or after the Effective
Date and until the earlier of the Maturity Date and the termination of the Revolving Credit
Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in such Lender’s Revolving Credit Exposure exceeding such
Lender’s Revolving Credit Commitment. Within the limits set forth in the preceding sentence and
subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans.




          SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall be made as
part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, however, that the failure of any Lender to make
any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any other Lender to
make any Loan required to be made by such other Lender). Except for Loans deemed made pursuant to
paragraph (f) below, the Loans comprising any Borrowing shall be in an aggregate principal amount
that is (i) an integral multiple of $1,000,000 and not less than $1,000,000 or (ii) equal to the
remaining available balance of the Revolving Credit Commitments.




          (b) Subject to Sections 2.10 and 2.15, each Borrowing (other than Swingline Loans) shall be
comprised entirely of ABR Loans or Eurodollar Revolving Loans as the Borrower may request pursuant
to Section 2.05. Each Swingline Loan shall be an ABR Loan. Each Lender may at its option make any
Eurodollar Revolving Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of
more than one Type may be outstanding at the same time; provided, however, that the
Borrower shall not be entitled to request any Borrowing that, if made, would result in more than
ten Eurodollar Borrowings being outstanding hereunder at any time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they commence on the same date,
shall be considered separate Borrowings.




          (c) Except with respect to Loans made pursuant to paragraph (f) below, each Lender shall make
each Loan to be made by it hereunder on the proposed date







 



23




thereof by wire transfer of immediately available funds to such account in New York City as
the Administrative Agent may designate not later than 12:00 (noon), New York City time, and the
Administrative Agent shall promptly credit the amounts so received to an account in the name of the
Borrower designated by the Borrower in the applicable Borrowing Request (or, in the case of Loans
made on the Effective Date, first apply such amounts to pay amounts outstanding under the Existing
Credit Agreement) or, if a Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received to the respective Lenders.




          (d) Unless the Administrative Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Administrative Agent such
Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If the Administrative Agent shall
have so made funds available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with interest thereon
for each day from the date such amount is made available to the Borrower until the date such amount
is repaid to the Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender,
a rate determined by the Administrative Agent to represent its cost of overnight or short-term
funds (which determination shall be conclusive absent manifest error). If such Lender shall repay
to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s
Loan as part of such Borrowing for purposes of this Agreement.




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




          (f) If the applicable Issuing Bank shall not have received from the Borrower the payment
required to be made by Section 2.04(e) in respect of any L/C Disbursement within the time specified
in such Section, such Issuing Bank will promptly notify the Administrative Agent of the amount of
such L/C Disbursement and the Administrative Agent will promptly notify each Lender of such amount
and its Pro Rata Percentage thereof. Each Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York City time, on such
date (or, if such Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 11:00 a.m., New York City time, on the immediately following
Business Day), an amount equal to such Lender’s Pro Rata Percentage of such L/C Disbursement (it
being understood that such amount shall be deemed to constitute an ABR Revolving Loan of such
Lender and such payment shall be deemed to have reduced the L/C Exposure), and the Administrative
Agent will promptly pay to such Issuing Bank amounts so received by it from the Lenders. The
Administrative Agent will promptly pay to such Issuing Bank any amounts received by it







 



24




from the Borrower pursuant to Section 2.04(e) prior to the time that any Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the Administrative Agent
thereafter will be promptly remitted by the Administrative Agent to the Lenders that shall have
made such payments and to such Issuing Bank, as their interests may appear. If any Lender shall
not have made its Pro Rata Percentage of such L/C Disbursement available to the Administrative
Agent as provided above, such Lender and the Borrower severally agree to pay interest on such
amount, for each day from and including the date such amount is required to be paid in accordance
with this paragraph to but excluding the date such amount is paid, to the Administrative Agent for
the account of such Issuing Bank at (i) in the case of the Borrower, a rate per annum equal to the
interest rate applicable to ABR Revolving Loans pursuant to Section 2.08(a) and (ii) in the case of
such Lender, for the first such day, the Federal Funds Effective Rate, and for each day thereafter,
the Alternate Base Rate.




          SECTION 2.03. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein set forth, the
Swingline Lender agrees to make loans to the Borrower at any time and from time to time on and
after the Effective Date and until the earlier of the Maturity Date and the termination of the
Revolving Credit Commitments in accordance with the terms hereof, in an aggregate principal amount
at any time outstanding that will not result in (i) the aggregate principal amount of all Swingline
Loans exceeding $20,000,000 or (ii) the Aggregate Revolving Credit Exposure, after giving effect to
any Swingline Loan, exceeding the Total Revolving Credit Commitment; provided that the
Swingline Lender shall not make a Swingline Loan to refinance an outstanding Swingline Loan. Each
Swingline Loan shall be in a principal amount that is an integral multiple of $500,000. Within the
foregoing limits, the Borrower may borrow, pay or prepay and reborrow Swingline Loans hereunder,
subject to the terms, conditions and limitations set forth herein.




          (b) Swingline Loans. The Borrower shall notify the Administrative Agent by
facsimile, or by telephone (confirmed by facsimile), not later than 10:00 a.m., New York City time,
on the day of a proposed Swingline Loan. Such notice shall be delivered on a Business Day, shall
be irrevocable, shall refer to this Agreement and shall specify the requested date (which shall be
a Business Day) and amount of such Swingline Loan. The Administrative Agent will promptly advise
the Swingline Lender of any notice received from the Borrower pursuant to this paragraph. The
Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to
the general deposit account of the Borrower with the Swingline Lender by 2:00 p.m., New York City
time, on the day such Swingline Loan is so requested.




          (c) Prepayment. The Borrower shall have the right at any time and from time to time
to prepay any Swingline Loan, in whole or in part, upon giving written or facsimile notice (or
telephone notice promptly confirmed by written, or facsimile notice) to the Swingline Lender and to
the Administrative Agent before 12:00 (noon), New York City time, on the date of prepayment at the
Swingline Lender’s address for notices specified on Schedule 2.01.










 



25




          (d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to the
provisions of Section 2.09, shall bear interest as provided in Section 2.08(a).




          (e) Participations. 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 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
Lenders will participate. The Administrative Agent will, promptly upon receipt of such notice,
give notice to each Lender, specifying in such notice such Lender’s Pro Rata Percentage of such
Swingline Loan or Loans. In furtherance of the foregoing, each Lender hereby irrevocably,
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 Pro Rata Percentage of
such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is irrevocable, absolute and
unconditional and shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or an Event of Default or the termination of the Revolving Credit
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in Section 2.02(c) with
respect to Loans made by such Lender (and Section 2.02(c) shall apply, with the necessary changes,
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 Lenders. The Administrative Agent shall
notify the Borrower 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 Borrower 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
Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender,
as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrower of any default in the payment thereof.




          SECTION 2.04. Letters of Credit. (a) General. (i) The Borrower may request
the issuance of a Letter of Credit (A) for its own account or (B) for the account of any
Subsidiary, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing
Bank, at any time and from time to time on and after the Effective Date while the Revolving Credit
Commitments remain in effect. This Section shall not be construed to impose an obligation upon any
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms and conditions of
this Agreement. The Borrower unconditionally and irrevocably agrees that, in connection with any
Letter of Credit referred to in clause (B) of the first sentence of this paragraph, it will be
fully responsible for the reimbursement of L/C Disbursements, the payment of interest thereon and
the payment of L/C Participation Fees and other fees due under Section 2.07 to the same







 



26




extent as if it were the sole account party in respect of such Letter of Credit (the Borrower
hereby irrevocably waiving any defenses that might otherwise be available to it as a guarantor of
the obligations of any Subsidiary that shall be an account party in respect of any such Letter of
Credit).





     (ii) On the Effective Date, each Issuing Bank that has issued an Existing Letter of
Credit shall be deemed, without further action by any party hereto, to have granted to each
Lender and each Lender shall be deemed to have purchased from such Issuing Bank a
participation in such Existing Letter of Credit in accordance with paragraph (d) below. On
and after the Effective Date, each Existing Letter of Credit shall constitute a Letter of
Credit for all purposes hereof. Any Lender that issued an Existing Letter of Credit but
shall not have entered into an Issuing Bank Agreement shall have the rights of an Issuing
Bank as to such Letter of Credit for purposes of this Section 2.04.



          (b) Notice of Issuance; Certain Conditions. In order to request the issuance of a
Letter of Credit, the Borrower shall hand deliver or facsimile to an Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance) a notice requesting
the issuance of a Letter of Credit and setting forth the date of issuance, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) below), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare such Letter of Credit. A Letter of Credit shall be issued only if,
and upon issuance of each Letter of Credit the Borrower shall be deemed to represent and warrant
that, after giving effect to such issuance (A) the L/C Exposure shall not exceed $30,000,000, (B)
the Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit Commitment and
(C) the portion of the L/C Exposure attributable to Letters of Credit of the Issuing Bank requested
to issue such Letter of Credit shall not exceed the L/C Commitment of such Issuing Bank.




          (c) Expiration Date. Each Letter of Credit shall expire at the close of business on
the earlier of (i) the date one year after the date of the issuance of such Letter of Credit and
(ii) the date that is five Business Days prior to the Maturity Date, unless such Letter of Credit
expires by its terms on an earlier date; provided that any Letter of Credit may provide for
renewal thereof under customary “evergreen” provisions reasonably satisfactory to the applicable
Issuing Bank for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (ii) above).




          (d) Participations. By the issuance of a Letter of Credit and without any further
action on the part of the applicable Issuing Bank or the Lenders, the applicable Issuing Bank
hereby grants to each Lender, and each such Lender hereby acquires from the applicable Issuing
Bank, a participation in such Letter of Credit equal to such Lender’s Pro Rata Percentage of the
aggregate amount available to be drawn under such Letter of Credit, effective upon the issuance of
such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby
irrevocably, absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the applicable Issuing Bank, such Lender’s Pro Rata Percentage of each L/C Disbursement







 



27




made by each Issuing Bank and not reimbursed by the Borrower forthwith on the date due as
provided in Section 2.02(f). Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is irrevocable, absolute
and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or an Event of Default or the termination of the Revolving
Credit 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 L/C Disbursement in respect of
a Letter of Credit, the Borrower shall pay or cause the Subsidiary for whose account such Letter of
Credit shall have been issued to pay to the Administrative Agent an amount equal to such L/C
Disbursement not later than two hours after the Borrower shall have received notice from the
Issuing Bank that payment of such draft will be made, or, if the Borrower shall have received such
notice later than 10:00 a.m., New York City time, on any Business Day, not later than 10:00 a.m.,
New York City time, on the immediately following Business Day.




          (f) Obligations Absolute. The Borrower’s obligations to reimburse L/C Disbursements
as provided in paragraph (e) above 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 any Loan
Document, or any term or provision therein;




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




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




     (iv) any draft or other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;




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




     (vi) any other act, or omission to act, or delay of any kind of any Issuing
Bank, the Lenders, the Administrative Agent or any other person or any other event
or circumstance whatsoever, whether or not similar to









 



28



any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower’s obligations hereunder.



          Without limiting the generality of the foregoing, it is expressly understood and agreed that
the absolute and unconditional obligation of the Borrower hereunder to reimburse L/C Disbursements
will not be excused by the gross negligence or wilful misconduct of the Issuing Banks. However,
the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Issuing Bank’s gross negligence or wilful misconduct in
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that any Issuing Bank may accept documents that appear on their
face to be in substantial compliance with the terms of a Letter of Credit, without responsibility
for further investigation, and make payment under such Letter of Credit, unless, in the Issuing
Bank’s judgment, it has received information that proves any such documents to be forged or
fraudulent; provided that the Issuing Bank shall not be liable in any respect for any error
made as a result of, or damages resulting from, the exercise of its judgment with regard to any
such documents if such judgment is made in good faith. The parties hereto expressly agree that (i)
an Issuing Bank’s exclusive reliance on the documents presented to it under such Letter of Credit
as to any and all matters set forth therein, including reliance on the amount of any draft
presented under a Letter of Credit, whether or not the amount due to the beneficiary thereunder
equals the amount of such draft and whether or not any document presented pursuant to the Letter of
Credit proves to be insufficient in any respect, if such document on its face appears to be in
substantial compliance with the terms of the Letter of Credit, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit proves to be forged,
fraudulent or invalid or any statement therein proves to be inaccurate or untrue in any respect
whatsoever and (ii) any noncompliance in any immaterial respect of the documents presented under
the Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the applicable Issuing Bank.




          (g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank shall as promptly as possible give telephonic notification,
confirmed by facsimile, to the Administrative Agent and the Borrower of such demand for payment and
whether the Issuing Bank has made or will make an L/C Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any such L/C Disbursement.
The Administrative Agent shall promptly give each Lender notice thereof.




          (h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement in respect
of a Letter of Credit, then, unless the Borrower shall reimburse such L/C Disbursement in full on
such date, the unpaid amount thereof shall bear interest for the







 



29




account of the Issuing Bank, for each day from and including the date of such L/C
Disbursement, to but excluding the earlier of the date of payment by the Borrower or the date on
which interest shall commence to accrue thereon as provided in Section 2.02(f), at the rate per
annum that would apply to such amount if such amount were an ABR Loan.




          (i) Resignation or Removal of an Issuing Bank. An Issuing Bank may resign at any
time by giving 90 days’ prior written notice to the Administrative Agent, the Lenders and the
Borrower, and may be removed at any time by the Borrower by notice to such Issuing Bank, the
Administrative Agent and the Lenders. Upon the resignation or removal of an Issuing Bank
hereunder, such Issuing Bank shall be discharged from its obligations to issue additional Letters
of Credit hereunder. At the time such resignation or removal shall become effective, the Borrower
shall pay all fees accrued for the account of the Issuing Bank under Section 2.07(c)(ii) and not
yet paid. After the resignation or removal of an Issuing Bank hereunder, such Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it
prior to such resignation or removal, but shall not be required to issue additional Letters of
Credit.




          (j) Designation of Additional Issuing Banks. From time to time, the Borrower may by
notice to the Administrative Agent and the Lenders designate one or more Lenders reasonably
acceptable to the Administrative Agent as additional Issuing Banks. The acceptance by a Lender of
any appointment as an Issuing Bank hereunder shall be evidenced by an agreement (an “Issuing
Bank Agreement”), which shall be in a form satisfactory to the Borrower and the Administrative
Agent, shall set forth the L/C Commitment and Issuing Bank Fees of such Lender and shall be
executed by such Lender, the Borrower and the Administrative Agent and, from and after the
effective date of such agreement, (i) such Lender shall have all the rights and obligations of an
Issuing Bank under this Agreement and the other Loan Documents and (ii) references herein and in
the other Loan Documents to the term “Issuing Bank” shall be deemed to include such Lender in its
capacity as an Issuing Bank.




          (k) Cash Collateralization. If any Event of Default shall occur and be continuing,
the Borrower shall, on the Business Day it receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof, deposit in an account with the
Collateral Agent, for the benefit of the Lenders, an amount in cash equal to the L/C Exposure as of
such date; provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower
described in clause (g) or (h) of Article VII. Such deposit shall be held by the Collateral Agent
as collateral for the payment and performance of the Obligations. The Collateral 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 in







 



30




Permitted Investments, which investments shall be made at the option and sole discretion of
the Collateral Agent, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Banks for L/C Disbursements for which
they have not been reimbursed, (ii) be held for the satisfaction of the reimbursement obligations
of the Borrower for the L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders holding participations in outstanding Letters of
Credit representing greater than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit), be applied to satisfy the Obligations. If the Borrower is required to provide an amount
of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days
after all Events of Default have been cured or waived.




          (l) Issuing Bank Reports. Unless otherwise agreed by the Administrative Agent, each
Issuing Bank shall report in writing to the Administrative Agent (i) on or prior to each Business
Day on which such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of
such issuance, amendment, renewal or extension, and the face amounts of the Letters of Credit
issued, amended, renewed or extended by it and outstanding after giving effect to such issuance,
amendment, renewal or extension (and whether the amounts thereof shall have changed), it being
understood that such Issuing Bank shall not effect any issuance, renewal, extension or amendment
resulting in an increase in the aggregate amount of the Letters of Credit issued by it without
first obtaining written confirmation from the Administrative Agent that such increase is then
permitted under this Agreement, (ii) on each Business Day on which such Issuing Bank makes any L/C
Disbursement, the date, currency and amount of such L/C Disbursement, (iii) on any Business Day on
which the applicable Borrower fails to reimburse an L/C Disbursement required to be reimbursed to
such Issuing Bank on such day, the date of such failure and the currency and amount of such L/C
Disbursement and (iv) on any other Business Day, such other information as the Administrative Agent
shall reasonably request as to the Letters of Credit issued by such Issuing Bank.




          SECTION 2.05. Borrowing Procedure. In order to request a Borrowing (other than a
Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to which this Section 2.05
shall not apply), the Borrower shall hand deliver or facsimile to the Administrative Agent a duly
completed Borrowing Request (a) in the case of a Eurodollar Borrowing, not later than 12:00 (noon),
New York City time, three Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the Business Day of a proposed
Borrowing. Each Borrowing Request shall be irrevocable, shall be signed by or on behalf of the
Borrower and shall specify the following information: (i) whether such Borrowing is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the number and location of the account to which funds are to be disbursed;
(iv) the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; provided, however, that, notwithstanding any
contrary specification in any Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as







 



31




to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is specified
in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. The Administrative Agent shall promptly advise the applicable Lenders of any
notice given pursuant to this Section 2.05 (and the contents thereof), and of each Lender’s portion
of the requested Borrowing.




          SECTION 2.06. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of each Lender (i) the
then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) the then unpaid
principal amount of each Swingline Loan on the applicable Swingline Maturity Date.




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




          (c) The Administrative Agent shall maintain accounts in which it will record (i) the amount
of each Loan made hereunder, the Class and Type thereof and, if a Eurodollar Revolving Loan, the
Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder from the Borrower or any Guarantor and each
Lender’s share thereof.




          (d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above
shall be prima facie evidence of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with their terms.




          (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, each Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in the form attached hereto as Exhibit H. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).




          SECTION 2.07. Fees. (a) The Borrower agrees to pay to each Lender, through the
Administrative Agent, on the last Business Day of March, June, September and December in each year
and on the date on which the last of the Commitments of such Lender shall expire or be terminated
as provided herein, a







 



32




commitment fee (a “Commitment Fee”) equal to the Applicable Percentage per annum in
effect from time to time on the daily unused amount of the Revolving Credit Commitment of such
Lender during the preceding quarter (or other period commencing with the date hereof or ending with
the date on which the last of the Commitments of such Lender shall expire or be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of
360 days. The Commitment Fee due to each Lender shall commence to accrue on the date hereof and
shall cease to accrue on the date on which the last of the Commitments of such Lender shall expire
or be terminated as provided herein. For purposes of calculating Commitment Fees only, no portion
of the Revolving Credit Commitments shall be deemed utilized by virtue of any Swingline Loan being
outstanding.




          (b) The Borrower agrees to pay to the Administrative Agent, for its own account, the
administrative fees set forth in the Fee Letter at the times and in the amounts specified therein
(the “Administrative Agent Fees”).




          (c) The Borrower agrees to pay (i) to each Lender, through the Administrative Agent, on the
last Business Day of March, June, September and December of each year and on the date on which the
Revolving Credit Commitment of such Lender shall be terminated as provided herein, a fee (an
“L/C Participation Fee”) calculated on such Lender’s Pro Rata Percentage of the daily
aggregate L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the preceding quarter (or shorter period commencing with the date hereof or
ending with the Maturity Date or the date on which all Letters of Credit have been canceled or have
expired and the Revolving Credit Commitments of all Lenders shall have been terminated) at a rate
equal to the Applicable Percentage from time to time used to determine the interest rate on
Borrowings comprised of Eurodollar Revolving Loans pursuant to Section 2.08, and (ii) to each
Issuing Bank with respect to each Letter of Credit issued thereby (A) on the last Business Day of
March, June, September and December of each year and on the date on which all Letters of Credit
issued by such Issuing Bank have been canceled or have expired, a fronting fee equal to a
percentage per annum (as shall be agreed upon by the Borrower and such Issuing Bank) of the average
daily aggregate face amount, during the preceding quarter (or shorter period, as provided above),
of all outstanding Letters of Credit issued by such Issuing Bank (the “Fronting Fee”) and
(B) the standard issuance, drawing and amendment fees specified from time to time by such Issuing
Bank (together with the Fronting Fee, the “Issuing Bank Fees”). All L/C Participation Fees
and Fronting Fees shall be computed on the basis of the actual number of days elapsed in a year of
360 days.




          (d) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that the
Issuing Bank Fees shall be paid directly to the applicable Issuing Banks. Once paid, none of the
Fees shall be refundable under any circumstances; provided, however, that the
foregoing shall in no event constitute a waiver of or otherwise affect any claims the Borrower may
have against any other party to this Agreement.










 



33




          SECTION 2.08. Interest on Loans. (a) Subject to the provisions of Section 2.09, the
Loans comprising each ABR Borrowing, including each Swingline Loan, shall bear interest (computed
on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may
be, when the Alternate Base Rate is determined by reference to the Prime Rate and over a year of
360 days at all other times) at a rate per annum equal to the Alternate Base Rate plus the
Applicable Percentage in effect from time to time.




          (b) Subject to the provisions of Section 2.09, the Loans comprising each Eurodollar Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Percentage in effect from time to time.




          (c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case may be,
shall be determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.




          SECTION 2.09. Default Interest. If the Borrower shall default in the payment of the
principal of or interest on any Loan or any other amount becoming due hereunder, by acceleration or
otherwise, or under any other Loan Document, the Borrower shall on demand from time to time pay
interest, to the extent permitted by law, on such defaulted amount to but excluding the date of
actual payment (after as well as before judgment) (a) in the case of overdue principal, at the rate
otherwise applicable to such Loan pursuant to Section 2.08 plus 2% per annum and (b) in all other
cases, at the rate per annum applicable at such time to ABR Loans plus 2% per annum.




          SECTION 2.10. Alternate Rate of Interest. In the event and on each occasion that on
the day two Business Days prior to the commencement of any Interest Period for a Eurodollar
Borrowing the Administrative Agent shall have determined that dollar deposits in the principal
amounts of the Loans comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will not exceed the cost
to any Lender of making or maintaining its Eurodollar Revolving Loan during such Interest Period,
or that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or facsimile notice (which, in the
case of a facsimile notice, shall be followed by a written notice) of such determination to the
Borrower and the Lenders. In the event of any such determination, until the Administrative Agent
shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to Section 2.05 or
2.12 shall be deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.










 



34




          SECTION 2.11. Termination and Reduction of Commitments. (a) The Revolving Credit
Commitments, the Swingline Commitment and the L/C Commitments shall automatically terminate at 5:00
p.m., New York City time, on the Maturity Date.




          (b) Upon at least three Business Days’ prior irrevocable written or facsimile notice to the
Administrative Agent, the Borrower may at any time in whole permanently terminate, or from time to
time in part permanently reduce the Revolving Credit Commitments; provided,
however, that (i) each partial reduction of the Revolving Credit Commitments shall be in an
integral multiple of $1,000,000 and in a minimum amount of $5,000,000 and (ii) the Total Revolving
Credit Commitment shall not be reduced to an amount that is less than the Aggregate Revolving
Credit Exposure at the time.




          SECTION 2.12. Conversion and Continuation of Borrowings. The Borrower shall have the
right at any time upon prior irrevocable notice to the Administrative Agent (a) not later than
12:00 (noon), New York City time, one Business Day prior to conversion, to convert any Eurodollar
Borrowing into an ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing (other than a
Swingline Loan) into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 12:00 (noon), New York City
time, three Business Days prior to conversion, to convert the Interest Period with respect to any
Eurodollar Borrowing to another permissible Interest Period, subject in each case to the following:





     (i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;




     (ii) if less than all the outstanding principal amount of any Borrowing shall
be converted or continued, then each resulting Borrowing shall satisfy the
limitations specified in Sections 2.02(a) and (b) regarding the principal amount
and maximum number of Borrowings of the relevant Type;




     (iii) each conversion shall be effected by each Lender and the Administrative
Agent by recording for the account of such Lender the new Loan of such Lender
resulting from such conversion and reducing the Loan (or portion thereof) of such
Lender being converted by an equivalent principal amount; accrued interest on any
Eurodollar Revolving Loan (or portion thereof) being converted shall be paid by the
Borrower at the time of conversion;




     (iv) if any Eurodollar Borrowing is converted at a time other than the end of
the Interest Period applicable thereto, the Borrower shall pay, upon demand, any
amounts due to the Lenders pursuant to Section 2.16;









 



35



     (v) any portion of a Borrowing maturing or required to be repaid in less than
one month may not be converted into or continued as a Eurodollar Borrowing;




     (vi) any portion of a Eurodollar Borrowing that cannot be converted into or
continued as a Eurodollar Borrowing by reason of the immediately preceding clause
shall be automatically converted at the end of the Interest Period in effect for
such Borrowing into an ABR Borrowing;




     (vii) upon notice to the Borrower from the Administrative Agent, which may be
given at the request of any Lender, after the occurrence and during the continuance
of a Default or Event of Default, no outstanding Loan may be converted into, or
continued at the end of the applicable Interest Period as, a Eurodollar Revolving
Loan.



          Each notice pursuant to this Section shall be irrevocable and shall refer to this Agreement
and specify (i) the identity and amount of the Borrowing that the Borrower requests be converted or
continued, (ii) whether such Borrowing is to be converted to or continued as a Eurodollar Borrowing
or an ABR Borrowing, (iii) if such notice requests a conversion, the date of such conversion (which
shall be a Business Day) and (iv) if such Borrowing is to be converted to or continued as a
Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest Period is specified
in any such notice with respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month’s duration. The
Administrative Agent shall advise the Lenders of any notice given pursuant to this Section and of
each Lender’s portion of any converted or continued Borrowing. If the Borrower shall not have
given notice in accordance with this Section to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this Section to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new Interest Period as an
ABR Borrowing.




          SECTION 2.13. Prepayment. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, upon prior written or facsimile
notice to the Administrative Agent (or telephone notice promptly confirmed by written or facsimile
notice) (i) in the case of prepayment of a Eurodollar Borrowing, not later than 12:00 (noon), New
York City time, three Business days before the date of prepayment, or (ii) in the case of an ABR
Borrowing not later than 11:00 a.m., New York City time, on the date of prepayment;
provided, however, that each partial prepayment shall be in an amount that is an
integral multiple of $1,000,000 and not less than $1,000,000.




          (b) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein on the date stated therein. All
prepayments under this Section shall be subject to Section 2.16 but otherwise without premium or
penalty. All prepayments









 



36




under this Section shall be accompanied by accrued interest on the principal amount being
prepaid to the date of payment.




          SECTION 2.14. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or administration thereof
(whether or not having the force of law) shall change the basis of taxation of payments to any
Lender or Issuing Bank of the principal of or interest on any Eurodollar Revolving Loan made by
such Lender or any Fees or other amounts payable hereunder (other than changes in respect of taxes
imposed on the overall net income of such Lender or Issuing Bank by the jurisdiction in which such
Lender or Issuing Bank has either its principal office or applicable lending office or by any
political subdivision or taxing authority therein), or shall 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 or Issuing Bank (except any such reserve requirement which is
reflected in the Adjusted LIBO Rate) or shall impose on such Lender or Issuing Bank or the London
interbank market any other condition affecting this Agreement or Eurodollar Revolving Loans made by
such Lender or any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or Issuing Bank of making or maintaining any
Eurodollar Revolving Loan or increase the cost to any Lender of issuing or maintaining any Letter
of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum
received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount determined in good faith by such Lender or Issuing Bank to be material,
then the Borrower will pay to such Lender or Issuing Bank, as the case may be, upon demand such
additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.




          (b) If any Lender or Issuing Bank shall have determined that the adoption after the date
hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy, or any
change after the date hereof in any such law, rule, regulation, agreement or guideline (whether
such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of such Lender) or
Issuing Bank or any Lender’s or Issuing Bank’s holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s
capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a
consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by
such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to
a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding
company could have achieved but for such applicability, adoption, change or compliance (taking into
consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing
Bank’s holding company







 



37



with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be
material, then from time to time the Borrower shall pay to such Lender or Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such
Lender’s or Issuing Bank’s holding company for any such reduction suffered.




          (c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in
paragraph (a) or (b) above, together with an explanation in reasonable detail, shall be delivered
to the Borrower. In determining any additional amounts owing under this Section 2.14, each Lender
or Issuing Bank will act reasonably and in good faith and will use averaging and attribution
methods which are reasonable; provided that such Lender’s or Issuing Bank’s determination
of compensation owing under this Section 2.14 shall, absent manifest error, unreasonableness or bad
faith, be final and conclusive and binding on all parties hereto. The Borrower shall pay such
Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 15
days after its receipt of the same; provided that if the Borrower shall reasonably dispute
such amount, the amount due shall be paid within three Business Days after such dispute is
resolved.




          (d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation for any
increased costs or reductions in amounts received or receivable or reduction in return on capital
shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more than 90 days prior to
the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the change
in law or other circumstance giving rise to such increased costs or reductions and of such Lender’s
or Issuing Bank’s intention to claim compensation therefor; provided further that, if the
change in law or other circumstance giving rise to such increased costs or reductions is
retroactive, then the 90-day period referred to above shall be extended to include the period of
retroactive effect thereof. The protection of this Section shall be available to each Lender and
Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law,
rule, regulation, agreement, guideline or other change or condition that shall have occurred or
been imposed.




          SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision of this
Agreement, if, after the date hereof, any change in any law or regulation or in the interpretation
thereof by any Governmental Authority charged with the administration or interpretation thereof
shall make it unlawful for any Lender to make or maintain any Eurodollar Revolving Loan or to give
effect to its obligations as contemplated hereby with respect to any Eurodollar Revolving Loan,
then, by written notice to the Borrower and to the Administrative Agent:




          (i) such Lender may declare that Eurodollar Revolving Loans will not
thereafter (for the duration of such unlawfulness) be made by such Lender hereunder
(or be continued for additional Interest Periods and ABR Loans








 



38



           will not thereafter (for such duration) be converted into Eurodollar Revolving
Loans), whereupon any request for a Eurodollar Borrowing (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for an
additional Interest Period) shall, as to such Lender only, be deemed a request for
an ABR Loan (or a request to continue an ABR Loan as such for an additional
Interest Period or to convert a Eurodollar Revolving Loan into an ABR Loan, as the
case may be), unless such declaration shall be subsequently withdrawn; and




          (ii) such Lender may require that all outstanding Eurodollar Revolving Loans
made by it be converted to ABR Loans, in which event all such Eurodollar Revolving
Loans shall be automatically converted to ABR Loans as of the effective date of
such notice as provided in paragraph (b) below.



In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the Eurodollar Revolving
Loans that would have been made by such Lender or the converted Eurodollar Revolving Loans of such
Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Revolving Loans.




          (b) For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be
effective as to each Eurodollar Revolving Loan made by such Lender, if lawful, on the last day of
the Interest Period currently applicable to such Eurodollar Revolving Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.




          SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against any actual
loss or expense that such Lender may sustain or incur as a consequence of (a) any event, other than
a default by such Lender in the performance of its obligations hereunder, which results in (i) such
Lender receiving or being deemed to receive any amount on account of the principal of any
Eurodollar Revolving Loan prior to the end of the Interest Period in effect therefor, (ii) the
conversion of any Eurodollar Revolving Loan to an ABR Loan, or the conversion of the Interest
Period with respect to any Eurodollar Revolving Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (iii) any Eurodollar Revolving Loan to be made by such
Lender (including any Eurodollar Revolving Loan to be made pursuant to a conversion or continuation
under Section 2.12) not being made after notice of such Loan shall have been given by the Borrower
hereunder (any of the events referred to in this clause (a) being called a “Breakage
Event”) or (b) any default in the making of any payment or prepayment of any Eurodollar
Revolving Loan required to be made hereunder. In the case of any Breakage Event, such actual loss
shall include an amount equal to the excess, as reasonably determined by such Lender, of (i) its
actual cost (which may be determined by such Lender by any reasonable method) of obtaining funds
for the Eurodollar Revolving Loan that is the subject of such Breakage Event for the period from
the date of such Breakage Event to the last day of the Interest Period in effect (or that would
have









 



39



been in effect) for such Loan over (ii) the amount of interest likely to be realized by such
Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such
period. A certificate of any Lender setting forth any amount or amounts which such Lender is
entitled to receive pursuant to this Section 2.16, together with an explanation in reasonable
detail shall be delivered to the Borrower. In determining any additional amounts owing under this
Section 2.16, each Lender or Issuing Bank will act reasonably and in good faith; provided
that such Lender’s or Issuing Bank’s determination of compensation owing under this Section 2.16
shall, absent manifest error, unreasonableness or bad faith, be final and conclusive and binding on
all parties hereto.




          SECTION 2.17. Pro Rata Treatment. Except as provided below in this Section 2.17 with
respect to Swingline Loans and as required under Section 2.15, each Borrowing, each payment or
prepayment of principal of any Borrowing, each payment of interest on the Loans of any Class, each
payment of commitment fees with respect to Commitments of any Class, each reduction of the
Commitments of any Class and each conversion of any Borrowing to or continuation of any Borrowing
as a Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments shall have expired
or been terminated, in accordance with the respective principal amounts of their outstanding Loans
of the applicable Class). For purposes of determining the available Revolving Credit Commitments
of the Lenders at any time, each outstanding Swingline Loan shall be deemed to have utilized the
Revolving Credit Commitments of the Lenders (including those Lenders which shall not have made
Swingline Loans) pro rata in accordance with such respective Revolving Credit
Commitments. Each Lender agrees that in computing such Lender’s portion of any Borrowing to be
made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of
such Borrowing to the next higher or lower whole dollar amount.




          SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan
Party, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or
other security or interest arising from, or in lieu of, such secured claim, received by such Lender
under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other
means, obtain payment (voluntary or involuntary) in respect of any Loan or Loans or L/C
Disbursement as a result of which the unpaid principal portion of its Loans and participations in
Swingline Loans and L/C Disbursements shall be proportionately less than the unpaid principal
portion of the Loans and participations in Swingline Loans and L/C Disbursements of any other
Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a participation in the Loans,
participations in Swingline Loans and L/C Exposure, as the case may be, of such other Lender, so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate unpaid principal amount of the Loans and L/C Exposure and participations in Loans and L/C
Exposure held by all the Lenders; provided, however, that (i) if any such
participations are purchased pursuant to this Section 2.18 and the payment giving rise thereto
shall thereafter be recovered, such participations shall be rescinded to the extent of such
recovery and the purchase









 



40



price restored without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this 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 Swingline Loans
or L/C Disbursements to any assignee or participant, other than to the Borrower or any of the
Subsidiaries or any Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a
participation deemed to have been so purchased may exercise any and all rights of banker’s lien,
setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by
reason of such participation as fully as if such Lender had made a Loan directly to the Borrower in
the amount of such participation.




          SECTION 2.19. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any L/C Disbursement or any Fees or other amounts)
hereunder and under any other Loan Document not later than 1:00 p.m., New York City time, on the
date when due in immediately available dollars, without setoff, defense 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. Each such payment (other than (i) Issuing Bank Fees, which shall be paid
directly to the applicable Issuing Banks, (ii) principal of and interest on Swingline Loans, which
shall be paid directly to the Swingline Lender except as otherwise provided in Section 2.03(e) and
(iii) payments pursuant to Sections 2.14, 2.16, 2.20 and 9.05 shall be made directly to the persons
entitled thereto and payments pursuant to other Loan Documents shall be made to the persons
specified therein) shall be made to the Administrative Agent at its offices at Eleven Madison
Avenue, New York, New York 10010, or as otherwise directed.




          (b) The Administrative Agent shall distribute any such payments received by it for the
account of any other person to the appropriate recipient promptly following receipt thereof.
Whenever any payment (including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or otherwise would occur, on
a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of interest or Fees, if
applicable.




          (c) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed L/C 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
L/C Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed L/C Disbursements then due to such parties.










 



41




          SECTION 2.20. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, 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) the Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.




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




          (c) The Borrower shall indemnify the Administrative Agent, each Lender and each Issuing Bank,
within 10 days after written demand 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 the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or Issuing Bank, or by the Administrative Agent on
its own behalf or on behalf of a Lender or Issuing Bank, shall be conclusive absent manifest error.
The Administrative Agent, Lender or Issuing Bank may, at its sole reasonable discretion, take such
steps as the Borrower reasonably requests to assist the Borrower, at the Borrower’s own expense, to
minimize or, as applicable, recover such Indemnified Taxes or Other Taxes.




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




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall, after having received
from the Borrower notice of the availability of such exemptions from or reductions of withholding
tax, as well as all such appropriate documentation prescribed by applicable law, deliver to the
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









 



42




requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.




          SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to
Mitigate. (a) In the event (i) any Lender or Issuing Bank delivers a certificate requesting
compensation pursuant to Section 2.14, (ii) any Lender or Issuing Bank delivers a notice described
in Section 2.15, (iii) the Borrower is required to pay any amount to any Lender or the Issuing Bank
or any Governmental Authority on account of any Lender or Issuing Bank pursuant to Section 2.20 or
(iv) any Lender becomes a Non-Consenting Lender, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in Section 9.04(e)), upon
notice to such Lender or Issuing Bank and the Administrative Agent, require such Lender or Issuing
Bank to transfer and assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under this Agreement to an
assignee that shall assume such assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (w) such assignment will result in a
reduction in the claim for compensation under Section 2.14 or in the withdrawal of the notice under
Section 2.15 or in the reduction of payments under Section 2.20, as the case may be, (x) such
assignment shall not conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (y) the Borrower shall have received the prior written
consent of the Administrative Agent (and, if a Revolving Credit Commitment is being assigned, of
each Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, and
(z) the Borrower or such assignee shall have paid to the affected Lender or Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and interest accrued to
the date of such payment on the outstanding Loans or L/C Disbursements of such Lender or Issuing
Bank, respectively, plus all Fees and other amounts accrued for the account of such Lender
or Issuing Bank hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that, if prior to any such transfer and assignment the circumstances or event that
resulted in such Lender’s or Issuing Bank’s claim for compensation under Section 2.14 or notice
under Section 2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to cause
such Lender or Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences specified in
Section 2.15, or cease to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender or Issuing Bank pursuant to paragraph (b)
below), or if such Lender or Issuing Bank shall waive its right to claim further compensation under
Section 2.14 in respect of such circumstances or event or shall withdraw its notice under Section
2.15 or shall waive its right to further payments under Section 2.20 in respect of such
circumstances or event, as the case may be, then such Lender or Issuing Bank shall not thereafter
be required to make any such transfer and assignment hereunder.




          (b) If (i) any Lender or Issuing Bank shall request compensation under Section 2.14, (ii) any
Lender or Issuing Bank delivers a notice described in Section 2.15 or (iii) the Borrower is
required to pay any amount to any Lender, the Issuing Bank or any Governmental Authority on account
of any Lender or Issuing Bank, pursuant to







 



43



Section 2.20, then such Lender or Issuing Bank shall use reasonable efforts (which shall not
require such Lender or Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense
or otherwise take any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights
and delegate and transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce its claims for compensation under Section
2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender or Issuing Bank in connection with any such
filing or assignment, delegation and transfer.




ARTICLE III




Representations and Warranties




          The Borrower represents and warrants to the Administrative Agent, each Issuing Bank and each
of the Lenders that:




          SECTION 3.01. Organization; Powers. The Borrower and each of the Domestic
Subsidiaries and Material Foreign Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the corporate power and
authority to execute, deliver and perform its obligations under each of the Loan Documents and each
other agreement or instrument contemplated hereby to which it is or will be a party and, in the
case of the Borrower, to borrow hereunder.




          SECTION 3.02. Authorization. The execution, delivery and performance by each Loan
Party of each of the Loan Documents, the Borrowings hereunder and the creation of the Liens
provided for in the Security Documents (collectively, the “Transactions”) (a) have been
duly authorized by all requisite corporate and, if required, stockholder action and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation, or of the certificate or
articles of incorporation or other constitutive documents or by-laws of the Borrower or any of the
Subsidiaries, (B) any order of any Governmental Authority or (C) any provision of any indenture,
agreement or other instrument to which the Borrower or any of the Subsidiaries is a party or by
which any of them or any of their property is or may be bound, (ii) be in conflict with, result in
a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give
rise to any right to accelerate or to require the prepayment, repurchase or redemption of any
obligation under any such indenture, agreement or other instrument or (iii) result in the creation
or imposition of any Lien upon or with respect to any property or assets









 



44


now owned or hereafter acquired by the Borrower or any of the Subsidiaries (other than any
Lien created hereunder or under the Security Documents).




          SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by
the Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan
Party thereto will constitute, a legal, valid and binding obligation of the Borrower or such Loan
Party enforceable against the Borrower or such Loan Party in accordance with its terms.




          SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is or will be
required in connection with the Transactions, except for (a) the filing of Uniform Commercial Code
financing statements and (b) such as have been made or obtained and are in full force and effect.




          SECTION 3.05. Financial Statements. The Borrower has heretofore furnished to the
Lenders its consolidated balance sheets and statements of income, stockholders’ equity and cash
flows as of the end of and for each fiscal year in the three-fiscal year period ended December 31,
2006, audited by and accompanied by the opinion of PricewaterhouseCoopers LLP, independent public
accountants. Such financial statements present fairly the financial condition and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and
for such periods. Such balance sheets and the notes thereto disclose all material liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries as of the dates thereof.
Such financial statements were prepared in accordance with GAAP applied on a consistent basis and
are in compliance with the requirements of Regulation S-X under the Securities Act of 1933, as
amended.




          SECTION 3.06. No Material Adverse Effect; No Default. (a) There has been no
Material Adverse Effect since December 31, 2006.




          (b) No Default has occurred and is continuing.




          SECTION 3.07. Title to Properties; Possession Under Leases. (a) The Borrower and
each of the Domestic Subsidiaries and Material Foreign Subsidiaries has good and marketable title
to, or valid leasehold interests in, all its material properties and assets, 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 and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly permitted by Section
6.02.




          (b) The Borrower and each of the Domestic Subsidiaries and Material Foreign Subsidiaries has
complied with all material obligations under all material leases to which it is a party and all
such leases are in full force and effect. The Borrower and each Subsidiary enjoys peaceful and
undisturbed possession under all such material leases.










 



45




          SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the date hereof a
list of all Subsidiaries and the direct or indirect ownership interests of the Borrower therein,
and identifies each Subsidiary that is a Significant Subsidiary or a Material Foreign Subsidiary on
the date hereof. The shares of capital stock or other ownership interests so indicated on
Schedule 3.08 are fully paid and non-assessable and are owned by the Borrower, directly or
indirectly, free and clear of all Liens (except for the Liens created under the Loan Documents and
statutory nonconsensual Liens).




          SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on Schedule
3.09, there are not any actions, suits or proceedings at law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of the Subsidiaries or any business, property or rights of any such
person (i) that involve any Loan Document or (ii) as to which there is a reasonable possibility of
an adverse determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.




          (b) The Borrower and each of the Domestic Subsidiaries and Material Foreign Subsidiaries is
in compliance with all laws, regulations, consent decrees and orders of any Governmental Authority
applicable to it (including, without limitation, the Patriot Act, ERISA, employee health and
safety, margin regulations, Environmental Laws and Health Care Laws) or its property and all
indentures, agreements and other instruments binding upon it or its property, except where the
failure to comply, individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.




          (c) None of the Borrower or any of the Domestic Subsidiaries or Material Foreign Subsidiaries
or any of their respective material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted violate, any law, rule or
regulation (including any zoning, building, Environmental Law, ordinance, code or approval or any
building permit), or is in default with respect to any judgment, writ, injunction, decree or order
of any Governmental Authority, where such violation or default could reasonably be expected to
result in a Material Adverse Effect.




          SECTION 3.10. Agreements. (a) Neither the Borrower nor any of the Domestic
Subsidiaries and Material Foreign Subsidiaries is a party to any agreement or instrument or subject
to any corporate restriction that has resulted or could reasonably be expected to result in a
Material Adverse Effect.




          (b) Neither the Borrower nor any of the Subsidiaries is in default in any manner under any
provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to result in a Material
Adverse Effect.










 



46




          SECTION 3.11. Federal Reserve Regulations. (a) Neither the Borrower nor any of the
Subsidiaries is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.




          (b) No part of the proceeds of any Loan or any Letter of Credit will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that
entails a violation of, or that is inconsistent with, the provisions of the Regulations of the
Board, including Regulation U or X.




          SECTION 3.12. Investment Company Act. Neither the Borrower nor any of the
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.




          SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the Loans and
will request the issuance of Letters of Credit only for the purposes specified in the preamble to
this Agreement.




          SECTION 3.14. Tax Returns. Each of the Borrower and the Subsidiaries has filed or
caused to be filed all Federal and all material state, local and foreign tax returns or materials
required to have been filed by it and has paid or caused to be paid all material taxes due and
payable by it and all assessments received by it, except taxes that are being contested in good
faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable,
shall have set aside on its books adequate reserves.




          SECTION 3.15. No Material Misstatements. None of (a) the Confidential Information
Memorandum or (b) any other information, report, financial statement, exhibit or schedule furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant thereto contained,
contains or will contain any material misstatement of fact or omitted, omits or will omit to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were, are or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or constitutes a
forecast or projection, the Borrower represents only that it acted in good faith and utilized
reasonable assumptions and due care in the preparation of such information, report, financial
statement, exhibit or schedule.




          SECTION 3.16. Employee Benefit Plans. Each of the Borrower and its ERISA Affiliates
is in compliance in all material respects with the applicable provisions of ERISA and the Code and
the regulations and published interpretations thereunder. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA Events, could
reasonably be expected to result in material liability of the Borrower or any of its ERISA
Affiliates. The present value of all benefit liabilities under each Plan (based on those
assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the last annual valuation date applicable thereto, exceed the fair market value of the assets of
such Plan.















 





47


          SECTION 3.17. Environmental Matters. Except as set forth in Schedule 3.17:




          (a) To the knowledge of the Borrower, the properties owned, leased or operated by the
Borrower and the Subsidiaries (the “Properties”) do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of, (ii) require
Remedial Action under, or (iii) could reasonably be expected to give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;




          (b) The Borrower, the Subsidiaries and their respective operations are in compliance, and in
the last five years have been in compliance, with all Environmental Laws and all necessary
Environmental Permits have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect;




          (c) To the knowledge of the Borrower, there have been no Releases or threatened Releases at,
from or under the Properties or otherwise in connection with the operations of the Borrower or the
Subsidiaries, which Releases or threatened Releases, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect;




          (d) Neither the Borrower nor any of the Subsidiaries has received any Environmental Claim in
connection with the Properties or the operations of the Borrower or the Subsidiaries or with regard
to any person whose liabilities for environmental matters the Borrower or the Subsidiaries has
retained or assumed, in whole or in part, contractually, by operation of law or otherwise, which,
in the aggregate, could reasonably be expected to result in a Material Adverse Effect, nor do the
Borrower or the Subsidiaries have any reasonable basis to believe that any such Environmental Claim
is being threatened; and




          (e) (i) To the knowledge of the Borrower, Hazardous Materials have not been transported from
the Properties, nor have Hazardous Materials been generated, treated, stored or disposed of at, on
or under any of the Properties in a manner that could give rise to any liability under any
Environmental Law which in the aggregate could be expected to result in a Material Adverse Effect,
nor (ii) have the Borrower or the Subsidiaries retained or assumed any liability, contractually, by
operation of law or otherwise with respect to the generation, treatment, storage or disposal of
Hazardous Materials, which transportation, generation, treatment, storage or disposal, or retained
or assumed liabilities, in the aggregate could reasonably be expected to result in a Material
Adverse Effect.




          SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the Borrower for the
Subsidiaries as of the date hereof. As of each such date, such insurance is in full force and
effect and all premiums have been duly paid. The Borrower and the













 



48



Subsidiaries have insurance in such amounts and covering such risks and liabilities as are in
accordance with normal industry practice.




          SECTION 3.19. Pledge Agreement. The Pledge Agreement creates in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral (as defined in the Pledge Agreement) and when (a)
certificates evidencing the Collateral consisting of certificated securities are delivered to the
Collateral Agent, together with stock powers executed in blank, and (b) appropriate filings under
the Uniform Commercial Code are made in favor of the Collateral Agent or control agreements are
executed by the issuers and delivered to the Collateral Agent in the case of uncertificated
securities included in the Collateral, will constitute a fully perfected first priority Lien on and
security interest in all right, title and interest of each pledgor thereunder in such Collateral,
in each case prior and superior in right to any other person.




          SECTION 3.20. Labor Matters. As of the date hereof and the Effective Date, there are
no strikes, lockouts or slowdowns against the Borrower or any of the Subsidiaries pending or, to
the knowledge of the Borrower, threatened. The hours worked by and payments made to employees of
the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters. All payments due
from the Borrower or any of the Domestic Subsidiaries or Material Foreign Subsidiaries, or for
which any claim may be made against the Borrower or any of the Domestic Subsidiaries or Material
Foreign Subsidiaries, on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of the Borrower or the applicable
Subsidiary.




          SECTION 3.21. Solvency. On the Effective Date (i) the fair value of the assets of
the Borrower and the Subsidiaries on a consolidated basis, at a fair valuation, will exceed their
debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair saleable value
of the property of the Borrower and the Subsidiaries on a consolidated basis will be greater than
the amount that will be required to pay the probable liability in respect of their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured; (iii) the Borrower and the Subsidiaries on a consolidated basis will be able
to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) the Borrower and the Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to conduct the business in
which they are engaged as such business is now conducted and is proposed to be conducted following
the Effective Date.










 



49




ARTICLE IV




Conditions of Lending




          The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of
Credit hereunder are subject to the satisfaction of the following conditions:




          SECTION 4.01. All Credit Events. On the date of each Borrowing, including each
Borrowing of a Swingline Loan, and on the date of each issuance of a Letter of Credit (each such
event being called a “Credit Event”):




          (a) The Administrative Agent shall have received a notice of such Borrowing as required by
Section 2.05 (or such notice shall have been deemed given in accordance with Section 2.05) or, in
the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative
Agent shall have received a notice requesting the issuance of such Letter of Credit as required by
Section 2.04(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline Lender and the
Administrative Agent shall have received a notice requesting such Swingline Loan as required by
Section 2.03(b).




          (b) The representations and warranties set forth in Article III shall be true and correct in
all material respects on and as of the date of such Credit Event with the same effect as though
made on and as of such date, except to the extent such representations and warranties expressly
relate to an earlier date.




          (c) The Borrower and each other Loan Party shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to be observed or
performed, and at the time of and immediately after such Credit Event, no Event of Default or
Default shall have occurred and be continuing.




          Each Credit Event shall be deemed to constitute a representation and warranty by the Borrower
on the date of such Credit Event as to the satisfaction of the conditions set forth in paragraphs
(b) and (c) of this Section.




          SECTION 4.02. Effective Date. The obligations of the Lenders to make Loans and of
the Issuing Banks to issue Letters of Credit hereunder, and the incorporation of Existing Letters
of Credit as Letters of Credit hereunder shall not become effective until the date on which each of
the following conditions is satisfied (or waived in accordance with Section 9.08):





     (a) The Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may include facsimile
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.









 



50



     (b) The Administrative Agent shall have received, on behalf of itself, the Lenders and
the Issuing Banks, (i) (A) a favorable written opinion of James Elrod, Esquire, General
Counsel of the Borrower, substantially to the effect set forth in Exhibit G-1, (B)
a favorable written opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., special
counsel to the Borrower, substantially to the effect set forth in Exhibit G-2, and
(C) a favorable written opinion of Bass, Berry & Sims PLC, Tennessee counsel to the
Borrower, substantially to the effect set forth in Exhibit G-3, in each case (1)
dated the date hereof, (2) addressed to the Administrative Agent, the Issuing Banks and the
Lenders, and (3) covering such other matters relating to the Loan Documents and the
Transactions as the Administrative Agent shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinions.




     (c) The Administrative Agent shall have received (i) a copy of the certificate or
articles of incorporation, including all amendments thereto, of each Loan Party, certified
as of a recent date by the Secretary of State of the state of its organization, and a
certificate as to the good standing of each Loan Party as of a recent date, from such
Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan
Party dated the Effective Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of such Loan Party as in effect on the Effective Date and at
all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Loan Party authorizing the execution, delivery and performance
of the Loan Documents to which such person is a party and, in the case of the Borrower, the
Borrowings hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate or articles of
incorporation of such Loan Party have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to clause (i) above,
and (D) as to the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of such Loan
Party; (iii) a certificate of another officer as to the incumbency and specimen signature
of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above;
and (iv) such other documents as the Lenders, the Issuing Banks or Cravath, Swaine & Moore
LLP, counsel for the Administrative Agent, may reasonably request.




     (d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by a Financial Officer of the Borrower, confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (e)
below.




     (e) The Collateral Requirement and the Guarantee Requirement shall have been
satisfied.




     (f) After giving effect to the Transactions occurring on the date hereof, the Borrower
and the Subsidiaries shall have outstanding no Indebtedness for









 



51



borrowed money or preferred stock other than (i) Indebtedness under the Loan
Documents, (ii) the Convertible Notes and (iii) other Indebtedness permitted under Section
6.01 (other than clause (h) thereof).




     (g) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the date hereof, including, to the extent invoiced, reimbursement or
payment of all fees and out-of-pocket expenses (including fees, charges and disbursements
of outside counsel) required to be reimbursed or paid by any Loan Party hereunder or under
any other Loan Document or under the Fee Letter.




     (h) The Administrative Agent and each Lender shall have received all such information
as shall have been reasonably requested by it in order to enable it to comply with the
requirements of the Patriot Act and any other “know your customer” or similar laws or
regulations.




     (i) The commitments under the Existing Credit Agreement shall have been or shall
simultaneously be terminated, the principal of and all accrued interest on all Loans
outstanding under such agreement and all fees and other amounts accrued for the accounts of
or owed to the lenders thereunder shall have been or shall simultaneously be paid in full
(except that the Existing Letters of Credit shall remain outstanding as Letters of Credit
hereunder) and all Liens securing the obligations of the Borrower and the Subsidiaries
thereunder shall have been released.


The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.08)
at or prior to 5:00 p.m., New York City time, on April 27, 2007 subject to extension (by not more
than 10 Business Days) by the Administrative Agent in its sole discretion (and, in the event such
conditions are not so satisfied, waived or extended, the Commitments shall terminate at such time).




ARTICLE V




Affirmative Covenants




          The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain
in effect and until the Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been
paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in
writing, the Borrower will, and will cause each of the Subsidiaries to:










 



52




          SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal existence, except
as otherwise expressly permitted under Section 6.05.




          (b) Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep
in full force and effect the rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and trade names material to the conduct of its business; maintain and
operate such business in substantially the manner in which it is presently conducted and operated;
comply in all material respects with all applicable laws, rules, regulations, decrees and orders of
any Governmental Authority, whether now in effect or hereafter enacted; and at all times maintain
and preserve all property material to the conduct of such business and keep such property in good
repair, working order and condition and from time to time make, or cause to be made, all needful
and proper repairs, renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted at all times, in
each case to the extent the failure to do so could reasonably be expected to result in a Material
Adverse Effect.




          SECTION 5.02. Obligations and Taxes. Pay its Indebtedness and other obligations
promptly when due and in accordance with their terms (it being understood that nothing in this
Section shall require the payment of amounts for which the Borrower or any Subsidiary is in good
faith disputing its liability) and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment and discharge
shall not be required with respect to any such tax, assessment, charge, levy or claim so long as
the validity or amount thereof shall be contested in good faith by appropriate proceedings and the
Borrower shall have set aside on its books adequate reserves with respect thereto in accordance
with GAAP and such contest operates to suspend collection of the contested obligation, tax,
assessment or charge and enforcement of a Lien.




          SECTION 5.03. Financial Statements, Reports, etc. In the case of the Borrower,
furnish to the Administrative Agent, which shall deliver to each Lender:





     (a) on the date that is earlier of (i) the date by which the Annual Report on Form
10-K of the Borrower for each fiscal year is required to be filed under the rules and
regulations of the SEC and (ii) 90 days after the end of such fiscal year, its consolidated
balance sheets and related statements of operations, stockholders’ equity and cash flows
showing the financial condition of the Borrower and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by PricewaterhouseCoopers LLP or other
independent public accountants of recognized national standing reasonably acceptable to the
Required Lenders and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated financial
statements









 



53



fairly present the financial condition and results of operations of the Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;




     (b) on the date that is the earlier of (i) the date by which the Quarterly Report on
Form 10-Q of the Borrower for each of the first three fiscal quarters of each fiscal year
is required to be filed under the rules and regulations of the SEC and (ii) 45 days after
the end of such fiscal quarter, its consolidated balance sheets and related statements of
operations, stockholders’ equity and cash flows showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the
results of its operations and the operations of such Subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year, all certified by one of its
Financial Officers as fairly presenting the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit adjustments;




     (c) concurrently with any delivery of financial statements under sub-paragraph (a) or
(b) above, a certificate of the accounting firm or Financial Officer opining on or
certifying such statements (which certificate, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal interpretations) (i)
certifying that to the knowledge of such accounting firm or Financial Officer (x) no Event
of Default or Default has occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action taken or proposed to be
taken with respect thereto and (y) the passage of time will not reveal an Event of Default
or a Default and (ii) setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants contained in Sections
6.10, 6.11 and 6.12;




     (d) on or prior to each date of delivery of the Borrower’s year-end financial
statements pursuant to Section 5.03(a), the Borrower shall provide to each Lender a
business plan for the following two years, in a form satisfactory to the Administrative
Agent;




     (e) promptly after the same become publicly available, copies of all reports
(excluding, in any event, copies of press releases) which the Borrower sends to its
stockholders, and copies of all registration statements, reports on Form 10-K, Form 10-Q or
Form 8-K (or, in each case, any successor form) and other material reports which the
Borrower or any Subsidiary files with the SEC or any successor or analogous Government
Authority (other than public offerings of securities under employee benefit plans or
dividend reinvestment plans);




     (f) promptly, from time to time, such other information regarding the operations,
business affairs and financial condition of the Borrower or any of the Subsidiaries, or
compliance with the terms of any Loan Document, as the Administrative Agent or any Lender
may reasonably request (including any









 



54



information requested to ensure compliance with the requirements of the Patriot Act or
any other “know your customer” or similar laws or regulations).



          SECTION 5.04. Litigation and Other Notices. Furnish to the Administrative Agent,
each Issuing Bank and each Lender prompt written notice of the following:





     (a) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect thereto;




     (b) the filing or commencement of, or any written threat or written notice of
intention of any person to file or commence, any action, suit or proceeding, whether at law
or in equity or by or before any Governmental Authority, against the Borrower or any
Affiliate thereof, as to which there is a reasonable likelihood of an adverse result and
that could reasonably be expected to result in a Material Adverse Effect; and




     (c) any other development that has resulted in, or could reasonably be expected to
result in, a Material Adverse Effect.



          SECTION 5.05. Employee Benefits. (a) Comply in all material respects with the
applicable provisions of ERISA and the Code and (b) furnish to the Administrative Agent as soon as
possible after, and in any event within 10 days after any Responsible Officer of the Borrower knows
that, any ERISA Event has occurred that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower and/or the
Subsidiaries in an aggregate amount exceeding $5,000,000, a statement of a Financial Officer of the
Borrower setting forth details as to such ERISA Event and the action, if any, that the Borrower
proposes to take with respect thereto.




          SECTION 5.06. Maintaining Records; Access to Properties and Inspections. Keep proper
books of record and account in which full, true and correct entries in conformity with GAAP and all
requirements of law are made of all dealings and transactions in relation to its business and
activities. Subject to the provisions of Section 9.16, each Loan Party will, and will cause each
of the Subsidiaries to, permit any representatives designated by the Administrative Agent or any
Lender to visit and inspect the financial records and the properties of the Borrower or any of the
Subsidiaries upon reasonable prior notice to the Borrower (and, unless a Default or Event of
Default shall have occurred and be continuing, on not more than two occasions during any fiscal
year) and to make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss the affairs,
finances and condition of the Borrower or any of the Subsidiaries with the officers thereof and
independent accountants therefor; provided that whether or not a Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the right to participate in
all such discussions.










 



55




          SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans and request the
issuance of Letters of Credit only for the purposes set forth in the preamble to this Agreement.




          SECTION 5.08. Compliance with Environmental Laws. Comply, and use reasonable efforts
to cause all lessees and other persons occupying its Properties to comply, in all material respects
with all Environmental Laws and Environmental Permits applicable to its operations and Properties;
obtain and renew all Environmental Permits necessary for its operations and Properties except for
such non-compliance as could not reasonably be expected to result in a Material Adverse Effect; and
conduct any Remedial Action in accordance with Environmental Laws; provided,
however, that neither the Borrower nor any of the Subsidiaries shall be required to
undertake any Remedial Action to the extent that its obligation to do so is being contested in good
faith and by proper proceedings and appropriate reserves are being maintained with respect to such
circumstances.




          SECTION 5.09. Compliance with Laws. Comply, and cause each of its Material Foreign
Subsidiaries to comply with all laws, regulations, consent decrees and orders of any Governmental
Authority applicable to it or its property, as qualified under this Article V, except where the
failure to comply, individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.




          SECTION 5.10. Further Assurances. Execute any and all further documents, financing
statements, agreements, amendments, supplements and instruments, and take all further actions
(including filing Uniform Commercial Code and other financing or continuation statements) that may
be required under applicable law, or that the Required Lenders, the Administrative Agent or the
Collateral Agent may reasonably request, in order to cause the Guarantee Requirement and the
Collateral Requirement to be satisfied at all times.




ARTICLE VI




Negative Covenants




          The Borrower covenants and agrees with each Lender that, so long as this Agreement shall
remain in effect and until the Commitments have been terminated and the principal of and interest
on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been
paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in
writing, the Borrower will not, and will not cause or permit any of the Subsidiaries to:




          SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except:





     (a) Indebtedness for borrowed money existing on the date hereof and set forth in
Schedule 6.01;









 



56



     (b) Indebtedness created hereunder and under the other Loan Documents;




     (c) Indebtedness owing to the Borrower or any Subsidiary, and any Indebtedness owed by
the Borrower to any Subsidiary or by any Subsidiary to the Borrower or another Subsidiary;




     (d) Guarantees by the Borrower of Indebtedness of any Wholly Owned Subsidiary and
Guarantees by any Wholly Owned Subsidiary of Indebtedness of the Borrower or any other
Wholly Owned Subsidiary;




     (e) Indebtedness consisting of purchase money Indebtedness or Capital Lease
Obligations incurred in the ordinary course of business after the date hereof;




     (f) Extensions, renewals and replacements of Indebtedness referred to in clause (a) to
the extent the principal amount of such Indebtedness is not increased, the weighted average
life to maturity of such Indebtedness is not decreased, such Indebtedness, if subordinated
to the Loans, remains so subordinated on terms not less favorable to the Lenders and the
original obligors in respect of such Indebtedness remain the only obligors thereon;




     (g) Indebtedness created under Hedging Agreements entered into in the ordinary course
of business to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed
in the conduct of its business or the management of its liabilities and not for speculative
purposes or entered into to take advantage of reduced interest rates by converting fixed
rate obligations into floating rate obligations; and




     (h) other Indebtedness; provided that the Leverage Ratio on a pro forma basis
as of the end of and for the most recent period of four fiscal quarters for which financial
statements shall have been delivered pursuant to Section 5.03(a) or (b) shall not be
greater than the maximum Leverage Ratio permitted at the end of such period under Section
6.10, giving effect to such Indebtedness as if it had been incurred at the beginning of
such period (and if the aggregate amount of such Indebtedness exceeds $50,000,000, the
Borrower shall have delivered to the Administrative Agent on or prior to the date of the
incurrence of such Indebtedness, a certificate setting forth the calculations demonstrating
such Leverage Ratio);


provided, however, that the aggregate principal amount of all outstanding
Indebtedness incurred under clause (d), (e), (f), (g) or (h) that is secured by any asset of the
Borrower or any Subsidiary shall not at any time exceed $60,000,000 (excluding however Indebtedness
of any Subsidiary acquired after the date hereof in an aggregate principal amount for all such
Indebtedness not to exceed $200,000,000 that is secured by Liens on the assets of such Subsidiary
that are permitted by Section 6.02(c)).




          SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on any
property or assets (including stock or other securities of any person, including any










 



57



Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in
respect thereof, or assign or transfer any such income or revenues or rights in respect thereof,
except:





     (a) Liens on property or assets of the Borrower and the Subsidiaries existing on the
date hereof and set forth in Schedule 6.02; provided that such Liens shall
extend only to those assets to which they extend on the date hereof and shall secure only
those obligations which they secure on the date hereof;




     (b) any Lien created under the Loan Documents;




     (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any of the Subsidiaries; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition, (ii) such Lien does not apply to
any other property or assets of the Borrower or any of the Subsidiaries and (iii) such Lien
does not materially interfere with the intended use, occupancy and operation of any asset
or property subject thereto;




     (d) Liens for taxes, assessments, charges or levys not yet due or which are being
contested in compliance with Section 5.02;




     (e) carriers’, warehousemen’s, mechanics’, landlord’s (or lessor’s under operating
leases), materialmen’s, repairmen’s, custom and revenue authorities’, or other like Liens
arising in the ordinary course of business and securing obligations that are not due and
payable beyond the applicable grace period therefor or that are being contested in
compliance with Section 5.02;




     (f) pledges and deposits made in the ordinary course of business in compliance with
workmen’s compensation, unemployment insurance and other social security laws or
regulations;




     (g) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations,
liability to insurance carriers under insurance or self-insurance arrangements, surety and
appeal bonds, performance bonds, statutory banker’s liens on moneys held in bank accounts
and other obligations of a like nature incurred in the ordinary course of business;




     (h) zoning restrictions, easements, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of business which,
in the aggregate, are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of the
business of the Borrower or any of the Subsidiaries;




     (i) purchase money security interests in real property, improvements thereto or
equipment hereafter acquired (or, in the case of improvements, constructed) by the Borrower
or any of the Subsidiaries; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security









 



58



interests are incurred, and the Indebtedness secured thereby is created, within 180
days after such acquisition (or construction), (iii) at the time of the creation of the
Lien, the Indebtedness secured thereby does not exceed 100% of the cost of such real
property, improvements or equipment at the time of such acquisition (or construction) and
(iv) such security interests do not apply to any other property or assets of the Borrower
or any of the Subsidiaries;




     (j) Liens deemed to exist in connection with Capital Lease Obligations permitted under
Section 6.01;




     (k) attachment or judgment Liens not constituting an Event of Default under paragraph
(i) of Article VII;




     (l) Liens in favor of any Governmental Authority with respect to progress payments
under any governmental contract; and




     (m) licenses, sublicenses, leases and subleases not relating to any financing, granted
to third persons in the ordinary course of business and not interfering in any material
respect with the business of the Borrower and the Subsidiaries.



          SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement, directly
or indirectly, with any person whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or
lease such property or other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred; provided, however, that the
Borrower may enter into any such arrangement to the extent that the aggregate fair market value of
the property thereafter rented or leased shall not exceed $20,000,000.




          SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire any capital
stock, evidences of indebtedness or other securities of, make or permit to exist any loans or
advances to, or make or permit to exist any other investment in, any other person, except:





     (a) investments in Subsidiaries existing on the date hereof, and other investments
existing on the date hereof and set forth on Schedule 6.04(a);




     (b) repurchases by the Borrower of its common stock to the extent permitted under
Section 6.06(a)(iv);




     (c) Guarantees by the Subsidiaries of the Convertible Notes;




     (d) investments in and loans and advances to persons that are Subsidiaries immediately
prior to the making of such investments, loans or advances;




     (e) acquisitions expressly permitted under Section 6.05;









 



59



     (f) Permitted Investments;




     (g) extensions of trade credit in the ordinary course of business;




     (h) loans and advances to officers and employees of the Borrower or any Subsidiary in
the ordinary course of business (including for travel, entertainment, payroll advances and
relocation expenses) in an aggregate principal amount outstanding at any time when taken
together with the aggregate principal amount outstanding of investments made under clause
(i) below shall not exceed $20,000,000 at such time;




     (i) promissory notes or other evidences of Indebtedness received by the Borrower from
officers or employees of the Borrower or any Subsidiary (or any loan or advance made to any
Plan) in connection with the purchase of Equity Interests in the Borrower in an aggregate
principal amount outstanding at any time when taken together with the aggregate principal
amount outstanding of investments made under clause (h) above shall exceed $20,000,000 at
such time;




     (j) investments arising out of the bankruptcy of customers and suppliers;




     (k) investments, loans or advances made in connection with the development,
manufacture or distribution of pharmaceutical compounds or products or medical devices, in
each case through collaborative efforts with other pharmaceutical companies; and




     (l) any other investment (other than an investment of the type described in clause (h)
or (i) above); provided that at the time such investment is made or purchased, the
aggregate amount of the consideration paid after the date hereof (whether in cash,
assumption of Indebtedness or property, valued at the time each such investment is made) in
respect of all such investments under this paragraph (m) does not exceed (net of return of
capital of (but not return on capital of) any such investment) 15% of the Consolidated Net
Worth of the Borrower at such time.



          SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into
or consolidate with any other person, or permit any other person to merge into or consolidate with
it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related
transactions occurring within any 12 consecutive month period) all or any substantial part of its
assets (whether now owned or hereafter acquired) or any capital stock of any Subsidiary, or
purchase, lease or otherwise acquire (in one transaction or a series of related transactions
occurring within any 12 consecutive month period) assets that are substantial in relation to the
Borrower and the Subsidiaries taken as a whole (including by means of a merger or consolidation in
which the surviving person is the Borrower or a Wholly Owned Subsidiary), except that (a) the
Borrower and any of the Subsidiaries may purchase and sell inventory in the ordinary course of
business; (b) the Borrower or any of the Subsidiaries may purchase or license pharmaceutical
products from any third party and may license compounds and purchase










 



60



intellectual property from any third party in the ordinary course of business; it being agreed
that any such license or purchase for which the aggregate amount of consideration paid exceeds
$100,000,000 shall be treated as an acquisition subject to the requirements of clause (c) hereof;
(c) if (i) at the time thereof and immediately after giving effect thereto no Event of Default or
Default shall have occurred and be continuing, and (ii) in the event the aggregate amount of
consideration paid exceeds $100,000,000, the Borrower shall have delivered to the Administrative
Agent calculations demonstrating pro forma compliance with the covenants contained in Sections
6.10, 6.11 and 6.12 as of the end of and for the most recent period of four fiscal quarters for
which financial statements shall have been delivered pursuant to Section 5.03(a) or (b), giving
effect to such acquisition and the incurrence of any related Indebtedness as if they had occurred
at the beginning of such period, the Borrower or any of the Subsidiaries may acquire assets that
are substantial in relation to the Borrower and the Subsidiaries taken as a whole (including by
means of a merger or consolidation in which the surviving person is the Borrower or a Wholly Owned
Subsidiary) if the consideration paid in such acquisition consists of one or more of the following:
(A) common stock of the Borrower or (B) cash in an amount equal to proceeds of Indebtedness
permitted under Section 6.01(h) or the proceeds of any issuance by the Borrower of its common stock
(but only, in the case of clause (B), if such proceeds were received within 12 months prior to such
acquisition) or (C) cash or other consideration (but only, in the case of clause (C), if at the
time such acquisition is made, the Leverage Ratio shall not be greater than 3.5 to 1.0, on a pro
forma basis as of the end of and for the most recent period of four fiscal quarters for which
financial statements shall have been delivered pursuant to Section 5.03(a) or (b), giving effect to
such acquisition and the incurrence of any related Indebtedness as if they had occurred at the
beginning of such period (and if the aggregate amount of such cash or other consideration exceeds
$100,000,000, the Borrower shall have delivered to the Administrative Agent on or prior to the date
of the consummation of such acquisition, a certificate setting forth the calculations demonstrating
such Leverage Ratio)); (d) if at the time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be continuing (i) any Wholly Owned Subsidiary
may merge into the Borrower in a transaction in which the Borrower is the surviving corporation and
(ii) any Wholly Owned Subsidiary may merge into or consolidate with any other Wholly Owned
Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no
person other than the Borrower or a Wholly Owned Subsidiary receives any consideration; and (e) the
Borrower or any of the Subsidiaries may sell, transfer, lease or otherwise dispose of assets with a
fair market value (as reasonably determined by the board of directors or senior management of the
Borrower) that individually, for each asset so disposed of, does not exceed $20,000,000 and in the
aggregate, for all assets so disposed of by the Borrower and all the Subsidiaries during any fiscal
year, do not exceed $50,000,000; provided, however, the contemplated sale to Inyx,
Inc. pursuant to that certain Summary of Terms, dated March 7, 2007 by and between Inyx, Inc. and
King Pharmaceuticals, Inc. shall be permitted and shall otherwise be excluded from the dollar
limitations set forth in this Section 6.05(e).




          SECTION 6.06. Dividends and Distributions; Restrictions on Ability of Subsidiaries to Pay
Dividends. (a) Declare or pay, directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise), whether in cash,










 



61



property, securities or a combination thereof, with respect to any shares of its capital stock
or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any
Subsidiary to purchase or acquire) any shares of any class of its capital stock or set aside any
amount for any such purpose; provided, however, that (i) the Borrower may declare
and pay dividends or make other distributions on its capital stock to the extent made solely with
common stock of the Borrower; (ii) (x) any Subsidiary may declare and pay dividends or make other
distributions on its capital stock and (y) the Borrower may declare and pay dividends or make other
distributions on its capital stock in an aggregate amount up to $10,000,000; provided that
no Event of Default shall have occurred and be continuing; (iii) the Borrower may grant options,
and distribute shares of capital stock upon the exercise of options, pursuant to the terms of any
stock option plan for employees of King Pharmaceuticals, Inc. (or its Subsidiaries) and or any
non-employee director stock option plan; and (iv) so long as no Default or Event of Default shall
exist, (A) the Borrower may repurchase fractional shares of common stock of the Borrower; (B) the
Borrower may repurchase shares of common stock of the Borrower for cash for an aggregate purchase
price for all such repurchases under this clause (B) not to exceed $100,000,000; and (C) the
Borrower may repurchase for cash shares of common stock of the Borrower for an aggregate purchase
price in excess of the $100,000,000 limit set forth in clause (B) provided that with
respect to repurchases under this clause (C) that no Revolving Loan shall be outstanding at the
time of any such repurchase and the cash used to effect any such additional repurchase or series of
related repurchases shall constitute (x) no more than 80% of the cash (including for purposes of
calculating the amount thereof Permitted Investments described in clauses (a) through (h) and (j)
of the definition of “Permitted Investments”) held by the Borrower immediately prior to such
repurchase (or prior to the initial repurchase in a series of related repurchases) that is not
subject to any Lien or any other restriction on the use thereof (other than any Lien or restriction
under the Loan Documents) and (y) when taken together with the aggregate purchase price for all
repurchases made under this clause (C) from the date hereof through the date of such repurchase, no
more than 80% of the greatest amount of cash (calculated as in clause (x)) held by the Borrower on
December 31, 2006, or at the end of any fiscal quarter ending after the date hereof, that was not
subject to any Lien or any other restriction on the use thereof (other than any Lien or restriction
under the Loan Documents).




          (b) Permit any Subsidiary, directly or indirectly, to create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the ability of any such
Subsidiary to (i) pay any dividends or make any other distributions on its capital stock or any
other equity interest or (ii) make or repay any loans or advances to the Borrower or to any other
Subsidiary.




          SECTION 6.07. Transactions with Affiliates. Sell or transfer any property or assets
to, or purchase or acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that (a) this Section shall not apply to
transactions solely among the Borrower and the Subsidiaries and (b) the Borrower or any Subsidiary
may engage in any of the foregoing transactions in the ordinary course of business at prices and on
terms and conditions not less favorable to the










 



62



Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated
third parties.




          SECTION 6.08. Business of Borrower and Subsidiaries. Engage to any material extent
at any time in any business or business activity other than the business currently conducted by it
and business activities reasonably incidental thereto.




          SECTION 6.09. Fiscal Year. Change the end of its fiscal year from December 31 to any
other date.




          SECTION 6.10. Leverage Ratio. Permit the Leverage Ratio at any time to be in excess
of 3.50 to 1.00.




          SECTION 6.11. Consolidated Interest Expense Coverage Ratio. Permit the Consolidated
Interest Expense Coverage Ratio for any four-fiscal-quarter period ending after the date hereof to
be less than 3.00 to 1.00.




          SECTION 6.12. Consolidated Net Worth. Permit Consolidated Net Worth at any time to
be less than the sum of (i) $1,500,000,000 plus (ii) 50% of Consolidated Net Income for each fiscal
quarter ended after the date hereof (excluding any fiscal quarter for which Consolidated Net Income
shall have been negative).




          SECTION 6.13. Amendment of Material Documents. Amend, modify or waive any of its
rights under any agreement or instrument to which the Borrower or any of the Subsidiaries is party
in respect of Indebtedness of the Borrower or any Subsidiary the aggregate principal amount of
which exceeds $30,000,000, if any such amendment, modification or waiver could reasonably be
expected to result in a Material Adverse Effect or to be adverse to the rights or interests of the
Lenders in any material respect.




          SECTION 6.14. Prepayments, Redemptions and Repurchases of Debt. Make or commit to
make any payment (including by way of payment, prepayment, redemption, purchase or defeasance),
whether in cash, property, securities or a combination thereof, other than scheduled (or with
respect to senior indebtedness held by a person that is not an Affiliate of the obligor, mandatory)
payments of principal and interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of any Indebtedness for borrowed money (other than
Indebtedness under the Loan Documents and intercompany Indebtedness) of the Borrower and/or any
Subsidiary, except for (a) payments, whether in cash, property or securities, or a combination
thereof, of up to $100,000,000 in aggregate principal amount of Indebtedness of the Borrower and/or
any Subsidiary (excluding payments on the Convertible Notes), (b) payments made in cash on the
Convertible Notes upon any conversion thereof that do not exceed the aggregate principal amount of
the Convertible Notes so converted, (c) payments made in common stock of the Borrower on the
Convertible Notes upon the conversion thereof, (d) any payment in connection with the replacement
of Indebtedness of the Borrower and/or any Subsidiary with Indebtedness of the same borrower or
issuer having a maturity no earlier and an amount no greater than the replaced Indebtedness and
benefiting from no Guarantee or collateral beyond that










 



63



supporting the replaced Indebtedness and (e) any payment on Indebtedness of the Borrower or
any Subsidiary that is made at a time when no Revolving Loan is outstanding.




ARTICLE VII




Events of Default




          In case of the happening of any of the following events (“Events of Default”):





     (a) any representation or warranty made or deemed made in or in connection with any
Loan Document or the Borrowings or issuances of Letters of Credit hereunder, or any
representation, warranty, statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or pursuant to any
Loan Document, shall prove to have been false or misleading in any material respect when so
made, deemed made or furnished;




     (b) default shall be made in the payment of any principal of any Loan or any
reimbursement with respect to any L/C 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
by acceleration thereof or otherwise;




     (c) default shall be made in the payment of any interest on any Loan or any Fee or L/C
Disbursement or any other amount (other than an amount referred to in (b) above) due under
any Loan Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of three Business Days after telephonic or written
notice of such default;




     (d) default shall be made in the due observance or performance by the Borrower or any
of the Subsidiaries of any covenant, condition or agreement contained in Section 5.01(a) or
5.04(a) or in Article VI;




     (e) default shall be made in the due observance or performance by the Borrower or any
of the Subsidiaries of any covenant, condition or agreement contained in any Loan Document
(other than those specified in (b), (c) or (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the Administrative Agent or
any Lender to the Borrower;




     (f) (i) the Borrower or any of the Subsidiaries shall fail to pay any principal or
interest, regardless of amount, due in respect of any Indebtedness in a principal amount in
excess of $25,000,000 when and as the same shall become due and payable, or (ii) the
Borrower or any of the Subsidiaries shall fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or instrument evidencing or
governing any such Indebtedness, or any other event or condition shall occur, if the effect
of any failure or other event or condition referred to in this clause (ii) is to cause, or
to permit the holder or









 



64



holders of such Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such Indebtedness to become due or
to be required to be repurchased or redeemed prior to its stated maturity;




     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower or
any of the Subsidiaries, or of a substantial part of the property or assets of the Borrower
or a Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of the Subsidiaries or for a
substantial part of the property or assets of the Borrower or a Subsidiary or (iii) the
winding-up or liquidation of the Borrower or any of the Subsidiaries; and such proceeding
or petition shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;




     (h) the Borrower or any of the Subsidiaries shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Borrower or any
of the Subsidiaries or for a substantial part of the property or assets of the Borrower or
any of the Subsidiaries, (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, (vi) become unable, admit in writing its inability or fail generally
to pay its debts as they become due or (vii) take any action for the purpose of effecting
any of the foregoing;




     (i) one or more judgments for the payment of money in an aggregate amount in excess of
$25,000,000 shall be rendered against the Borrower, any of the Subsidiaries or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of the Borrower or any of
the Subsidiaries to enforce any such judgment;




     (j) an ERISA Event shall have occurred that, when taken together with all other such
ERISA Events, could reasonably be expected to result in liability of the Borrower in an
aggregate amount exceeding $25,000,000;




     (k) any Guarantee purported to be created by the Guarantee Agreement shall cease to
be, or shall be asserted by the Borrower or any other Loan Party not to be, a valid and
enforceable Guarantee of the Obligations, or any security









 



65



interest purported to be created by any Security Document shall cease to be, or shall
be asserted by the Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or such Security
Document) security interest in the securities, assets or properties covered thereby, except
to the extent that any such loss of perfection or priority results from the failure of the
Collateral Agent to (i) maintain possession of certificates representing securities pledged
under the Pledge Agreement or (ii) file or record any financing statement delivered to the
Collateral Agent by the Borrower; or




     (l) there shall have occurred a Change in Control;


then, and in every such event (other than an event with respect to the Borrower described in
paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the
Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall automatically become due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding.




ARTICLE VIII




The Administrative Agent and the Collateral Agent




          In order to expedite the transactions contemplated by this Agreement, Credit Suisse, Cayman
Islands Branch, is hereby appointed to act as Administrative Agent and Collateral Agent on behalf
of the Lenders and the Issuing Banks (for purposes of this Article VIII, the Administrative Agent
and the Collateral Agent are referred to collectively as the “Administrative Agent”). Each
of the Lenders and Issuing Banks and each assignee of any such Lender or Issuing Bank, hereby
irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or
Issuing Bank or such assignee and to exercise such powers as are specifically delegated to the
Administrative Agent by the terms and provisions hereof and of the other Loan Documents, together
with such actions and powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing










 



66



Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders
and the Issuing Banks all payments of principal of and interest on the Loans, all payments in
respect of L/C Disbursements and all other amounts due to the Lenders hereunder, and promptly to
distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give
notice on behalf of each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in connection with its
agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements
and other materials delivered by the Borrower or any other Loan Party pursuant to this Agreement or
the other Loan Documents as received by the Administrative Agent. Without limiting the generality
of the foregoing, the Administrative Agent is hereby expressly authorized to execute any and all
documents (including releases) with respect to the Collateral and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions of this Agreement
and the Security Documents.




          Neither the Administrative Agent nor any of its respective directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them except for its or his
own gross negligence or wilful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained
in any Loan Document. The Administrative Agent shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other
Loan Documents, instruments or agreements. The Administrative Agent shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written instructions signed by
the Required Lenders and, except as otherwise specifically provided herein, such instructions and
any action or inaction pursuant thereto shall be binding on all the Lenders. The Administrative
Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been signed or sent by
the proper person or persons. Neither the Administrative Agent nor any of its respective
directors, officers, employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any Lender or Issuing
Bank of any of its obligations hereunder or to any Lender or Issuing Bank on account of the failure
of or delay in performance or breach by any other Lender or Issuing Bank or the Borrower or any
other Loan Party of any of their respective obligations hereunder or under any other Loan Document
or in connection herewith or therewith. The Administrative Agent may execute any and all duties
hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall not be liable for
any action taken or suffered in good faith by it in accordance with the advice of such counsel.




          The Lenders hereby acknowledge that the Administrative Agent shall not be under any duty to
take any discretionary action permitted to be taken by it pursuant to the provisions of this
Agreement unless it shall be requested in writing to do so by the










 



67



Required Lenders. In addition, for the avoidance of doubt, the Lenders hereby acknowledge
that none of the Arranger, Co-Syndication Agents, Co-Documentation Agents or Managing Agent shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, Collateral Agent,
Swingline Lender, a Lender or Issuing Bank hereunder.




          Subject to the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint a successor which,
unless an Event of Default shall have occurred and be continuing at the time of such appointment,
shall be acceptable to the Borrower. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York,
New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any
such bank, and which, unless an Event of Default shall have occurred and be continuing at the time
of such appointment, shall be acceptable to the Borrower. Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and obligations hereunder.
After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section
9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as Administrative Agent.




          With respect to the Loans made by it hereunder, the Administrative Agent in its individual
capacity and not as the Administrative Agent shall have the same rights and powers as any other
Lender and may exercise the same as though it were not the Administrative Agent, and the
Administrative Agent and their Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any of the Subsidiaries or other Affiliate
thereof as if it were not the Administrative Agent.




          Each Lender agrees (a) to reimburse the Administrative Agent, on demand, in the amount of its
Pro Rata Percentage of any expenses incurred for the benefit of the Lenders by the Administrative
Agent, including counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) to indemnify
and hold harmless the Administrative Agent and any of its directors, officers, employees or agents,
on demand, in the amount of its Pro Rata Percentage, from and against any and all liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against it in its capacity as the Administrative Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or omitted by it or
any of them under this Agreement or any other Loan Document,










 



68



to the extent the same shall not have been reimbursed by the Borrower or any other Loan Party;
provided that no Lender shall be liable to the Administrative Agent or any such other
indemnified person for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Administrative Agent or any of its directors, officers,
employees or agents. Each Lender agrees to reimburse each Issuing Bank and its directors,
officers, employees and agents, in each case, to the same extent and subject to the same
limitations as provided above for the Administrative Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this 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 or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.




ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. Notices and other communications provided for herein and in
the other Loan Documents shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile, as follows:





     (a) if to the Borrower, to it at 501 Fifth Street, Bristol, TN 37620, Attention of
Randy Sharrow (Facsimile No. (423) 990-0951), with a copy to James Elrod at the above
address (Facsimile No. (423) 990-2566);




     (b) if to the Administrative Agent, to Credit Suisse, Global Business Center, 7200 Kit
Creek Road, Building 11, Research Triangle Park, NC 27709, Attention of Robert Buzenberg
(Facsimile No. (212) 322-2291); and




     (c) if to a Lender, to it at its address (or facsimile number) set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
shall have become a party hereto; and




     (d) if to an Issuing Bank, to it at its address (or facsimile number set forth on
Schedule 2.01 or in the Issuing Bank Agreement pursuant to which such person became
an Issuing Bank.


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 receipt if










 



69



delivered by hand or overnight courier service, or sent by facsimile, or on the date that is five
(5) Business Days after dispatch by certified or registered mail, if mailed, in each case
delivered, sent or mailed (properly addressed) to such party, as provided in this Section or in
accordance with the latest unrevoked direction from such party in accordance with this Section;
provided, however, that all notices and communications given to any party hereto in
accordance with the provisions of Article II shall either be delivered by hand or overnight courier
service and sent by facsimile and shall be deemed to have been given on the date on which they are
received.




          SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders and the Issuing Banks and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the Issuing Banks,
regardless of any investigation made by the Lenders or the Issuing Banks or on their behalf, 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 or the
L/C Commitments have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration of the term of
this Agreement, the consummation of the Transactions, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender or
Issuing Bank.




          SECTION 9.03. Binding Effect. This Agreement shall become effective and legally
binding on the parties hereto when it shall have been executed by the Borrower and 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 permitted
successors and assigns.




          SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the permitted successors
and assigns of such party; and all covenants, promises and agreements by or on behalf of the
Borrower, the Administrative Agent, the Issuing Banks or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and assigns.




          (b) Each Lender may assign to one or more assignees all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of any or all of its Commitments
and the Loans at the time owing to it); provided, however, that (i) except in the
case of an assignment to another Lender or an Affiliate or Related Fund of the assigning Lender or
another Lender, (x) the Borrower, unless an Event of Default shall have occurred and be continuing,
and the Administrative Agent (and, in the case of










 



70



any assignment of a Revolving Credit Commitment, each Issuing Bank and the Swingline Lender)
must give their prior written consent to such assignment (which consent shall not be unreasonably
withheld) and (y) the amount of the Commitments of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect to such assignment
is delivered to the Administrative Agent) shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000 (or, if less, the entire remaining amount of
such Lender’s Commitments) and (ii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and any tax form as required by the Internal
Revenue Service. Upon acceptance and recording pursuant to paragraph (e) of this Section and
payment of the processing and recording fee referred to therein, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution thereof, (A) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement and (B) the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, be released from its obligations under
this Agreement, other than any claims by the Borrower for violations by such Lender of the
provisions of this Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an 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
2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).




          (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that its
Commitments, and the outstanding balances of its Loans, without giving effect to assignments
thereof which have not become effective, are as set forth in such Assignment and Acceptance; (ii)
except as set forth in (i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or representations made in or
in connection with this Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any
of the Subsidiaries or the performance or observance by the Borrower or any of the Subsidiaries of
any of its obligations under this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent financial statements
referred to in Section 3.05(a) or delivered pursuant to Section 5.03 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and










 



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information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.




          (d) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, all
L/C Disbursements, and the Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be prima facie evidence of the matters recorded therein and the Borrower, the
Administrative Agent, the Issuing Banks, the Collateral Agent and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register and any
Assignments and Acceptances delivered to the Administrative Agent pursuant to this Section 9.04(d)
shall be available for inspection by the Borrower, the Issuing Banks, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior notice.




          (e) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee
(unless the assignee shall already be a Lender hereunder) and any tax form required by the Internal
Revenue Service, a processing and recordation fee of $3,500 and, if required, the written consent
of the Borrower, the Swingline Lender, each Issuing Bank and the Administrative Agent to such
assignment, the Administrative Agent shall (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice thereof to the
Borrower, Lenders, each Issuing Bank and the Swingline Lender. No assignment shall be effective
unless it has been recorded in the Register as provided in this paragraph (e).




          (f) Each Lender may without the consent of the Borrower, the Swingline Lender, any Issuing
Bank or the Administrative Agent sell participations to one or more banks or other entities in all
or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided, however, that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to the benefit of the provisions contained
in Sections 2.14, 2.16 and 2.20 to the same extent as if they were Lenders; provided that
no participant shall be entitled to receive any greater amount pursuant to Section 2.14 or 2.20
than the transferor Lender would have been entitled to receive in respect of the amount of the
participation










 



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transferred by such transferor Lender to such participant had no such transfer occurred and
(iv) the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans or L/C Disbursements and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate at which interest
is payable on the Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans, increasing or extending the Commitments or releasing all or
substantially all the Guarantors or the Collateral).




          (g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Borrower furnished
to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure
of information, each such assignee or participant or proposed assignee or participant shall execute
an agreement whereby such assignee or participant shall agree to preserve the confidentiality of
such confidential information on terms no less restrictive than those applicable to the Lenders
pursuant to Section 9.16 and, in the case of any assignee, the Administrative Agent shall provide
the Borrower with an execution copy of such agreement.




          (h) 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 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. In order to facilitate
such an assignment to a Federal Reserve Bank, the Borrower shall, at the request of the assigning
Lender, duly execute and deliver to the assigning Lender a promissory note or notes evidencing the
Loans made to the Borrower by the assigning Lender hereunder.




          (i) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such
in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent,
and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In










 



73



furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to the contrary in
this Section, any SPC may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or
a portion of its interests in any Loans to the Granting Lender or to any financial institutions
(consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This Section may not be amended without the written consent of the SPC.




          (j) The Borrower shall not assign or delegate any of its rights or duties hereunder without
the prior written consent of the Administrative Agent, each Issuing Bank and each Lender, and any
attempted assignment without such consent shall be null and void.




          SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Arranger, the Administrative Agent, the Collateral Agent,
the Issuing Banks and the Swingline Lender in connection with the preparation and administration of
this Agreement and the other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Arranger, the Administrative Agent, the
Collateral Agent or any Issuing Bank or Lender in connection with the enforcement or protection of
its rights in connection with this Agreement and the other Loan Documents or in connection with the
Loans made or Letters of Credit issued hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore LLP, counsel for the Arranger, the Administrative Agent
and the Collateral Agent, and, in connection with any such enforcement or protection, the
reasonable fees, charges and disbursements of any other outside counsel for the Arranger, the
Administrative Agent, the Collateral Agent or any Lender.




          (b) The Borrower agrees to indemnify the Arranger, the Administrative Agent, the Collateral
Agent, each Lender and Issuing Bank, the Swingline Lender and each Related Party of any of the
foregoing persons (each such person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and related
expenses, including reasonable outside counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties thereto of their respective










 



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obligations thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of Letters of Credit,
(iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether
or not any Indemnitee is a party thereto, or (iv) except to the extent arising in respect of real
property owned by such Indemnitee other than as a result of any foreclosure or similar proceeding
under the Loan Documents or arising solely as a result of activities of such Indemnitee other than
its activities under the Loan Documents, any actual or alleged presence, Release or threatened
Release of Hazardous Materials on any property presently or formerly owned, leased or operated by
the Borrower or any of the Subsidiaries, or any Environmental Claim related in any way to the
Borrower or the Subsidiaries; 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 gross negligence or wilful misconduct of such Indemnitee.




          (c) The provisions of this Section shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent or any Lender or Issuing Bank. All amounts due under
this Section shall be payable on written demand therefor.




          SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, except to the
extent prohibited by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, but excluding payroll and related trust fund accounts) at any time
held and other indebtedness at any time owing by such Lender (or its Affiliates) to or for the
credit or the account of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement and other Loan Documents held by such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.




          SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER
THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER
OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND










 



75



PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500 (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.




          SECTION 9.08. Waivers; Amendments. (a) No failure or delay of the Borrower, the
Administrative Agent, the Collateral Agent or any Issuing Bank or Lender in exercising any power or
right 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 Borrower, the Administrative
Agent, the Collateral 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 any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.




          (b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified other than pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any other Loan Document,
by the Loan Parties party thereto and the Administrative Agent or the Collateral Agent, as the case
may be, with the consent of the Required Lenders. No agreement referred to in the preceding
sentence shall (i) decrease the principal amount, or extend the maturity, of any scheduled date of
payment or date for reimbursement of or any date for the payment of any interest on, any Loan or
L/C Disbursement, or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement or decrease the amount, or extend any scheduled date of
payment, of any Fees, without the prior written consent of each Lender affected thereby, (ii)
increase or extend any Commitment or decrease or extend the date for payment of the Commitment Fees
of any Lender without the prior written consent of such Lender, (iii) amend or modify the
provisions of Section 2.17 or 9.04(j), the provisions of this Section (other than to impose
additional restrictions on amendments) or the definition of the term “Required Lenders” without the
prior written consent of each Lender, (iv) release any Guarantor (A) whose total assets represent
at the time of such release more than 10% of the total assets of the Borrower and its consolidated
Subsidiaries or (B) whose total revenues represent at the time of such release more than 10% of the
total revenues of the Borrower and its consolidated Subsidiaries or all or substantially all the
Collateral without the prior written consent of each Lender or (v) amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Collateral Agent, any Issuing Bank or
the Swingline Lender hereunder or under any other Loan Document without the prior written consent
of the Administrative Agent, the Collateral Agent, such Issuing Bank or the Swingline Lender.










 



76




          SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan or participation in any L/C
Disbursement, together with all fees, charges and other amounts which are treated as interest on
such Loan or participation in such L/C Disbursement 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 or
participation in accordance with applicable law, the rate of interest payable in respect of such
Loan or participation 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 or participation but were not payable as a result of the
operation of this Section 9.09 shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or participations 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 9.10. Entire Agreement. This Agreement, the Fee Letter and the other Loan
Documents constitute the entire contract between the parties relative to the subject matter hereof.
Any other previous agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement and the other Loan Documents, except as expressly agreed therein.
Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights, remedies, obligations
or liabilities under or by reason of this Agreement or the other Loan Documents.




          SECTION 9.11. 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 RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.11.




          SECTION 9.12. Severability. In the event any one or more of the provisions contained
in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining provisions contained herein
and therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in
good-faith negotiations to replace the










 



77



invalid, illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or unenforceable provisions.




          SECTION 9.13. Counterparts. 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, and shall become effective as
provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.




          SECTION 9.14. 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 are not to affect
the construction of, or to be taken into consideration in interpreting, this Agreement.




          SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each party hereto
hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or the other Loan Documents, 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. Nothing in
this Agreement shall affect any right that the Administrative Agent, the Collateral Agent, any
Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower or its properties in the courts of any
jurisdiction.




          (b) Each party 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 the
other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.




          (c) Each party hereto irrevocably consents to service of process in any manner permitted by
applicable law.




          SECTION 9.16. Confidentiality; Material Non-Public Information.
(a) The Administrative Agent, the Collateral Agent, each Issuing Bank and each of the Lenders
agrees to keep confidential (and to cause the persons referred to in clause (a) below to keep
confidential) the Information (as defined below) and all copies thereof,










 



78



extracts therefrom and analyses or other materials based thereon, except that the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender shall be permitted to
disclose Information (a) to such of its respective officers, directors, employees, agents,
affiliates and representatives as need to know such Information, (b) to any direct or indirect
counterparty in swap agreements or such contractual counterparty’s professional advisors (so long
as such contractual counterparty or professional advisors to such contractual counterparty agree to
be bound by the provisions of this Section), (c) to the extent requested by any regulatory
authority, including the National Association of Insurance Commissioners or any successor entity
thereto, (d) to the extent otherwise required by applicable laws and regulations or by any subpoena
or similar legal process, (e) in connection with any suit, action or proceeding (i) relating to the
enforcement of its rights hereunder or under the other Loan Documents or (ii) for purposes of
establishing a “due diligence” defense or (f) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrower; provided, however, that the
Administrative Agent, the Collateral Agent, any Issuing Bank and/or any Lender, as the case may be,
shall, to the extent possible and permitted by law, provide the Borrower with reasonable prior
notice of any disclosure of information referred to in clauses (d) and (e) above to allow the
Borrower to seek a protective order preventing such disclosure. For the purposes of this Section,
“Information” shall mean all financial statements, certificates, reports, plans, agreements
and information (including all analyses, compilations and studies prepared by the Administrative
Agent, the Collateral Agent, any Issuing Bank or any Lender based on any of the foregoing) that are
received from the Borrower and related to the Borrower, any shareholder of the Borrower or any
employee, customer or supplier of the Borrower, other than any of the foregoing that were available
to the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower. The parties agree that
money damages would not be a sufficient remedy for breach of this Section, and that in addition to
all other remedies available at law or in equity, the Borrower shall be entitled to seek equitable
relief, including injunction and specific performance, without proof of actual damages. The
provisions of this Section shall remain operative and in full force and effect regardless of the
expiration and term of this Agreement.




          (b) Each Lender acknowledges that Information furnished to it pursuant to this Agreement may
include material non-public information concerning the Borrower, the other Loan Parties and their
Related Parties or their respective securities, and confirms that it has developed compliance
procedures regarding the use of material non-public information and that it will handle such
material non-public information in accordance with those procedures and applicable law, including
Federal and state securities laws.




          (c) All Information, including requests for waivers and amendments, furnished by the Borrower
or the Administrative Agent pursuant to, or in the course of administering, this Agreement will be
syndicate-level information, which may contain material non-public information about the Borrower,
the other Loan Parties and their










 



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Related Parties or their respective securities. Accordingly, each Lender represents to the
Borrower and the Administrative Agent that it has identified in its Administrative Questionnaire a
credit contact who may receive information that may contain material non-public information in
accordance with its compliance procedures and applicable law, including Federal and state
securities laws.




          SECTION 9.17. Releases of Guarantors and Collateral.
(a) Notwithstanding any contrary provision herein or in any other Loan Document, if the
Borrower shall request the release under the Guarantee Agreement or the Security Documents of any
Subsidiary or of any Equity Interests included in the Collateral to be sold or otherwise disposed
of (including through the sale or disposition of any Subsidiary owning any such Subsidiary or
Collateral) to a person other than the Borrower or a Subsidiary in a transaction permitted under
the terms of this Agreement and shall deliver to the Collateral Agent a certificate to the effect
that such sale or other disposition and the application of the proceeds thereof will comply with
the terms of this Agreement, the Collateral Agent, if satisfied that such certificate is correct,
shall, without the consent of any Lender, execute and deliver all such instruments, releases,
financing statements or other agreements, and take all such further actions, as shall be necessary
to effectuate the release of such Subsidiary or such Equity Interests substantially simultaneously
with or at any time after the completion of such sale or other disposition.




          (b) Notwithstanding any provision herein or in any other Loan Document, the Collateral Agent
is hereby authorized and directed to release, and shall release, the Collateral from the security
interests created by the Security Documents upon the satisfaction of the following conditions
precedent (the “Release Conditions”), and subject to the reinstatement of such Liens as
provided in paragraphs (c) or (d) below:





     (i) the Borrower shall have given notice to the Collateral Agent at least 15
days prior to the proposed release date (the “Release Date”), specifying
the proposed Release Date;




     (ii) as of the Release Date, (A) the Ratings shall be BBB- or better by S&P
and Baa3 or better by Moody’s, (B) neither of such Ratings shall be under review
for possible downgrade and (C) the Borrower shall not have been placed on credit
watch with negative implications by either such rating agency;




     (iii) no Default or Event of Default shall have occurred and be continuing as
of the Release Date; and




     (iv) on the Release Date, the Administrative Agent shall have received a
certificate, dated the Release Date and executed on behalf of the Borrower by a
Responsible Officer thereof, confirming the satisfaction of the Release Conditions
set forth in clauses (i), (ii) and (iii) above.


Any such release shall be without recourse to, or representation or warranty by, the Collateral
Agent or any Lender and shall not require the consent of any Lender. Subject










 



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to the satisfaction of the conditions set forth in this paragraph (b), on and after the Release
Date, the Collateral Agent shall execute and deliver all such instruments, releases, financing
statements or other agreements, and take all such further actions, as shall be necessary to
effectuate the release of Collateral required by this paragraph.




          (c) If, following any release of Collateral pursuant to paragraph (b) above, any Lien
securing any Indebtedness is to be created on any Equity Interests that would have been required,
but for the satisfaction of the Release Conditions, to be pledged under the Pledge Agreement, the
Borrower shall promptly notify the Collateral Agent and promptly take or cause the applicable
Guarantor to take all such actions as shall be reasonably requested by the Collateral Agent so that
the Lenders will have the benefit of such other Lien at least equally and ratably with the other
obligations secured thereby.




          (d) If, following any release of Collateral pursuant to paragraph (b) above, one or more of
the conditions specified in clause (ii) of paragraph (b) above shall cease to be satisfied and the
Required Lenders shall so direct in a written notice to the Collateral Agent and the Borrower, the
requirements of Section 5.10 shall again become applicable and the Borrower shall promptly take and
cause the Subsidiaries to take all such actions as shall be necessary or as the Collateral Agent
shall reasonably request to cause the Collateral Requirement to be satisfied.




          (e) Without limiting the provisions of Section 9.05, the Borrower shall reimburse the
Collateral Agent and the Administrative Agent for all reasonable costs and expenses, including
reasonable attorney’s fees and disbursements, incurred by any of them in connection with any action
contemplated by this Section.




          SECTION 9.18. Patriot Act. The Administrative Agent and each Lender hereby notifies
the Borrower, for itself and the Subsidiaries, that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”),
it is required to obtain, verify and record information that identifies the Borrower and the
Subsidiaries, which information includes the name and address of the Borrower and the Subsidiaries
and other information that will allow such Lender to identify the Borrower and the Subsidiaries in
accordance with the Patriot Act.




          SECTION 9.19. No Fiduciary Duty. The Borrower, on behalf of itself and the
Subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby or
by any other Loan Document and any communications in connection therewith, the Borrower, the
Subsidiaries and their Affiliates, on the one hand, and the Administrative Agent, the Issuing
Banks, the Lenders and their Affiliates, on the other hand, will have a business relationship that
does not create, by implication or otherwise, any fiduciary duty on the part of the Administrative
Agent, the Issuing Banks, the Lenders or their Affiliates, and no such duty will be deemed to have
arisen in connection with any such transactions or communications.




          SECTION 9.20. Waiver of Notice Period in connection with Termination of the Commitments
under the Existing Credit Agreement. Each Lender that is a party to
the Existing Credit Agreement hereby waives the prior notice required for the termination of
the commitments under the Existing Credit Agreement.















 





	 	 	 	 	 
	 	Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





KING PHARMACEUTICALS, INC.,

 	 
	 	By:  	/s/ Brian A. Markison
 	 
	 	 	Name:  	Brian A. Markison 	 
	 	 	Title:  	President & Chief Executive Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

individually and as Administrative Agent

 	 
	 	By:  	/s/ Phillip Ho
 	 
	 	 	Name:  	Phillip Ho 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Shaheen Malik
 	 
	 	 	Name:  	Shaheen Malik 	 
	 	 	Title:  	Associate 	 



 









 






	 	 	 	 	 



Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement




UBS SECURITIES LLC, as Co-Syndication Agent,




	 	 	 	 	 	 	 
	By

	 	/s/ Richard L. Tavrow
	 	/s/
	 	David B. Julie
	 

	 	 
	 	 	 	 
	 

	 	Name: Richard L. Tavrow

Title: Director
Banking Products
Services, US
	 	 	 	David B. Julie

Associate Director
Banking Products

Services, US






 









 






	 	 	 	 	 
	 	Lender Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





Name of Institution:





UBS Loan Finance LLC

 	 
	 	By:  	/s/ Richard L. Tavrow
 	 
	 	 	Name:  	Richard L. Tavrow 	 
	 	 	Title:  	Director
Banking Products
Services, US 	 
	 



	 	 	 	 	 
	 	For any Institution requiring a second signature line:

 	 
	 	By:  	/s/ David B. Julie
 	 
	 	 	Name:  	David B. Julie 	 
	 	 	Title:  	Associate Director
Banking Products
Services, US 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





CITIGROUP GLOBAL MARKETS INC., individually

and as Co-Documentation Agent,

 	 
	 	By:  	/s/ Thomas Hackett
 	 
	 	 	Name:  	Thomas Hackett, Director 	 
	 	 	Title:  	Citigroup – Atlanta 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





BANK OF AMERICA, NA, individually and as Co-Syndication Agent,

 	 
	 	By:  	/s/ Gabriela B. Millhorn
 	 
	 	 	Name:  	Gabriela B. Millhorn 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





WACHOVIA BANK, NATIONAL ASSOCIATION,

individually and as Co-Documentation Agent,

 	 
	 	By:  	/s/ Jeanette Griffin
 	 
	 	 	Name:  	Jeanette Griffin 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





THE ROYAL BANK OF SCOTLAND PLC, individually

and as Co-Documentation Agent,

 	 
	 	By:  	/s/ Iain Stewart
 	 
	 	 	Name:  	Iain Sewart 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





U.S. BANK NATIONAL ASSOCIATION, individually

and as Managing Agent,

 	 
	 	By:  	/s/ Thomas A. Heokman
 	 
	 	 	Name:  	Thomas A. Heokman 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Lender Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





Name of Institution:





JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/ Stephanie Parker
 	 
	 	 	Name:  	Stephanie Parker 	 
	 	 	Title:  	Executive Director 	 
	 



	 	 	 	 	 
	 	For any Institution requiring a second signature line:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Lender Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





Name of Institution:





First Tennessee Bank National Association

 	 
	 	By:  	/s/ Freddie H. Malone
 	 
	 	 	Name:  	Freddie H. Malone 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	For any Institution requiring a second signature line:

 	 
	 	By:  	Not Required
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Lender Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





Name of Institution:





Bank Hapoalim B.M.

 	 
	 	By:  	/s/ Charles McLaughlin
 	 
	 	 	Name:  	Charles McLaughlin 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	For any Institution requiring a second signature line:

 	 
	 	By:  	/s/ James P. Surless
 	 
	 	 	Name:  	James P. Surless 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Lender Signature Page to King Pharmaceuticals, Inc.

2007 Credit Agreement





Name of Institution:





Chang Hwa Commerical Bank, Ltd., New York Branch

 	 
	 	By:  	/s/ Jim C.Y. Chen
 	 
	 	 	Name:  	Jim C.Y. Chen 	 
	 	 	Title:  	VP & General Manager 	 
	 



	 	 	 	 	 
	 	For any Institution requiring a second signature line:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: