Exhibit
10.1


 


EXECUTION COPY


	
   

  



 


CREDIT AGREEMENT AND GUARANTY


 


dated as of October 14, 2009


 


among


 


HOSPIRA, INC.,


as the Borrower and the Guarantor,


 


THE SUBSIDIARY BORROWERS 


FROM TIME TO TIME PARTY HERETO,


 


THE BANKS AND FINANCIAL INSTITUTIONS LISTED HEREIN, 


as Lenders,


 


CITIGROUP GLOBAL MARKETS INC., 


RBS SECURITIES INC. 


and 


MORGAN STANLEY SENIOR FUNDING, INC., 


as Joint Lead Bookrunners and Joint Lead Arrangers,


 


THE ROYAL BANK OF SCOTLAND PLC 


and 


MORGAN STANLEY SENIOR FUNDING, INC., 

as Joint Syndication Agents,


 


and


 


BANK OF AMERICA, N.A.

and


WACHOVIA BANK, N.A., A WELLS FARGO COMPANY, 


as Co-Documentation Agents


 


CITIBANK, N.A.,


as Administrative Agent


	
   

  



 

















 


CREDIT AGREEMENT


 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  SECTION 1.
  DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  1.1

  	
  Certain Defined Terms

  	
  1

  
	
  1.2 

  	
  Accounting Terms;
  Utilization of GAAP for Purposes of Calculations Under Agreement 

  	
  23
  

  
	
  1.3

  	
  Other Definitional
  Provisions and Rules of Construction

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 2.
  AMOUNT AND TERMS OF COMMITMENTS AND LOANS

  	
  24

  
	
   

  	
   

  
	
  2.1

  	
  Commitment; Making of
  Loans; Letters of Credit

  	
  24

  
	
  2.2

  	
  Issuance of Letters of
  Credit and Purchase of Participations Therein

  	
  25

  
	
  2.3

  	
  Pro Rata Shares;
  Availability of Funds; UCP

  	
  29

  
	
  2.4

  	
  The Register; Evidence of
  Debt; Notes

  	
  30

  
	
  2.5

  	
  Interest on the Loans

  	
  31

  
	
  2.6

  	
  Fees

  	
  35

  
	
  2.7

  	
  Provisions Regarding
  Payments

  	
  36

  
	
  2.8

  	
  Increased Costs; Taxes

  	
  38

  
	
  2.9

  	
  Special Provisions
  Governing LIBOR Rate Loans

  	
  43

  
	
  2.10 

  	
  Matters Relating to
  Currency Exchange Rates and Conversion of Amounts to Alternative Currencies 

  	
  44
  

  
	
  2.11

  	
  Defaulting Lenders

  	
  45

  
	
  2.12

  	
  Removal or Replacement of
  a Lender

  	
  46

  
	
  2.13

  	
  Mitigation

  	
  47

  
	
  2.14

  	
  Increase in the Aggregate
  Commitments

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 3.
  CONDITIONS PRECEDENT

  	
  49

  
	
   

  	
   

  
	
  3.1

  	
  Conditions to
  Effectiveness

  	
  49

  
	
  3.2

  	
  Conditions Precedent to
  each Credit Extension

  	
  51

  
	
  3.3

  	
  Conditions Precedent to
  each Commitment Increase

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 4.
  REPRESENTATIONS AND WARRANTIES

  	
  52

  
	
   

  	
   

  
	
  4.1

  	
  Organization, Powers,
  Qualification, Good Standing, Business and Subsidiaries

  	
  52

  
	
  4.2

  	
  Authorization of
  Borrowing, etc.

  	
  53

  
	
  4.3

  	
  Disclosure

  	
  53

  
	
  4.4

  	
  Financial Condition

  	
  54

  
	
  4.5

  	
  No Material Adverse Change

  	
  54

  
	
  4.6

  	
  Intellectual Property
  Matters

  	
  54

  
	
  4.7

  	
  No Litigation; Compliance
  with Laws

  	
  55

  
	
  4.8

  	
  No Default

  	
  55

  
	
  4.9

  	
  Governmental Regulation

  	
  55

  



 


i

















 


	
  4.10

  	
  Securities Activities

  	
  55

  
	
  4.11

  	
  Employee Benefit Plans

  	
  56

  
	
  4.12

  	
  Environmental Protection

  	
  56

  
	
  4.13

  	
  Pari Passu

  	
  57

  
	
  4.14

  	
  Restrictions

  	
  57

  
	
   

  	
   

  	
   

  
	
  SECTION 5.
  AFFIRMATIVE COVENANTS

  	
  57

  
	
   

  	
   

  
	
  5.1

  	
  Financial Statements and
  Other Reports

  	
  57

  
	
  5.2

  	
  Books and Records

  	
  60

  
	
  5.3

  	
  Existence

  	
  60

  
	
  5.4

  	
  Insurance

  	
  60

  
	
  5.5

  	
  Payment of Taxes

  	
  60

  
	
  5.6

  	
  Payment and Performance of
  Obligations

  	
  61

  
	
  5.7

  	
  Maintenance of Properties

  	
  61

  
	
  5.8

  	
  Compliance with Laws

  	
  61

  
	
  5.9

  	
  Use of Proceeds

  	
  61

  
	
  5.10

  	
  Claims Pari Passu

  	
  61

  
	
  5.11

  	
  Further Assurances

  	
  61

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  NEGATIVE COVENANTS

  	
  62

  
	
   

  	
   

  
	
  6.1

  	
  Liens

  	
  62

  
	
  6.2

  	
  Indebtedness

  	
  64

  
	
  6.3

  	
  Acquisitions

  	
  65

  
	
  6.4

  	
  Restrictions on Subsidiary
  Distributions

  	
  65

  
	
  6.5

  	
  Restricted Payments

  	
  66

  
	
  6.6

  	
  Restriction on Fundamental
  Changes and Asset Sales

  	
  66

  
	
  6.7

  	
  Conduct of Business

  	
  66

  
	
  6.8

  	
  Fiscal Year

  	
  67

  
	
  6.9

  	
  Interest Rate Agreements
  and Currency Agreements

  	
  67

  
	
  6.10

  	
  Transactions with
  Shareholders and Affiliates

  	
  67

  
	
  6.11

  	
  Financial Covenants

  	
  67

  
	
   

  	
   

  	
   

  
	
  SECTION 7.
  GUARANTY

  	
  68

  
	
   

  	
   

  
	
  7.1

  	
  Guaranty of the
  Obligations

  	
  68

  
	
  7.2

  	
  Payment by the Borrower

  	
  68

  
	
  7.3

  	
  Liability of Guarantor
  Absolute

  	
  68

  
	
  7.4

  	
  Waivers by Guarantor

  	
  70

  
	
  7.5

  	
  Guarantor’s Rights of
  Subrogation, Contribution, etc.

  	
  71

  
	
  7.6

  	
  Subordination of Other
  Obligations

  	
  72

  
	
  7.7

  	
  Continuing Guaranty

  	
  72

  
	
  7.8

  	
  Authority of Credit
  Parties

  	
  72

  
	
  7.9

  	
  Financial Condition of
  Credit Parties

  	
  72

  
	
  7.10

  	
  Bankruptcy, etc.

  	
  72

  



 


ii

















 


	
  SECTION 8.
  EVENTS OF DEFAULT

  	
  73

  
	
   

  	
   

  
	
  8.1

  	
  Failure to Make Payments
  When Due

  	
  73

  
	
  8.2

  	
  Default in Other
  Agreements

  	
  73

  
	
  8.3

  	
  Breach of Certain
  Covenants

  	
  74

  
	
  8.4

  	
  Breach of Representation
  or Warranty

  	
  74

  
	
  8.5

  	
  Other Defaults Under Loan
  Documents

  	
  74

  
	
  8.6

  	
  Involuntary Bankruptcy;
  Appointment of Receiver, etc.

  	
  74

  
	
  8.7

  	
  Voluntary Bankruptcy;
  Appointment of Receiver, etc.

  	
  75

  
	
  8.8

  	
  Judgments and Attachments

  	
  75

  
	
  8.9

  	
  Dissolution

  	
  75

  
	
  8.10

  	
  Employee Benefit Plans

  	
  75

  
	
  8.11

  	
  Change in Control

  	
  75

  
	
  8.12

  	
  Repudiation of Obligations

  	
  75

  
	
   

  	
   

  	
   

  
	
  SECTION 9.
  MISCELLANEOUS

  	
  76

  
	
   

  	
   

  
	
  9.1

  	
  Assignments and
  Participations in Loans and Letters of Credit

  	
  76

  
	
  9.2

  	
  Expenses

  	
  78

  
	
  9.3

  	
  Indemnity

  	
  79

  
	
  9.4

  	
  Exception for Subsidiary
  Borrowers

  	
  80

  
	
  9.5

  	
  Set-Off

  	
  80

  
	
  9.6

  	
  Amendments and Waivers

  	
  81

  
	
  9.7

  	
  Independence of Covenants

  	
  81

  
	
  9.8

  	
  Notices

  	
  82

  
	
  9.9

  	
  Survival of
  Representations, Warranties and Agreements

  	
  83

  
	
  9.10

  	
  Failure or Indulgence Not
  Waiver; Remedies Cumulative

  	
  84

  
	
  9.11

  	
  Marshalling; Payments Set
  Aside

  	
  84

  
	
  9.12

  	
  Severability

  	
  84

  
	
  9.13

  	
  Headings

  	
  84

  
	
  9.14

  	
  Applicable Law

  	
  84

  
	
  9.15

  	
  Successors and Assigns

  	
  85

  
	
  9.16

  	
  Consent to Jurisdiction
  and Service of Process

  	
  85

  
	
  9.17

  	
  Waiver of Jury Trial

  	
  86

  
	
  9.18

  	
  Confidentiality

  	
  86

  
	
  9.19

  	
  Ratable Sharing

  	
  87

  
	
  9.20

  	
  Counterparts;
  Effectiveness

  	
  88

  
	
  9.21

  	
  Obligations Several;
  Independent Nature of Lenders’ Rights

  	
  88

  
	
  9.22

  	
  Usury Savings Clause

  	
  88

  
	
  9.23

  	
  Judgment Currency

  	
  89

  
	
  9.24

  	
  Termination of Existing
  Credit Agreement

  	
  89

  
	
  9.25

  	
  No Fiduciary Duty

  	
  89

  
	
   

  	
   

  	
   

  
	
  SECTION 10.
  AGENTS

  	
  90

  
	
   

  	
   

  
	
  10.1

  	
  Authorization and
  Authority

  	
  90

  
	
  10.2

  	
  Agent Individually

  	
  90

  



 


iii

















 


	
  10.3

  	
  Duties of Agent;
  Exculpatory Provisions

  	
  91

  
	
  10.4

  	
  Reliance by Agent

  	
  92

  
	
  10.5

  	
  Delegation of Duties

  	
  93

  
	
  10.6

  	
  Resignation of Agent

  	
  93

  
	
  10.7

  	
  Non-Reliance on
  Administrative Agent and Other Lenders

  	
  94

  
	
  10.8

  	
  Right to Indemnity

  	
  95

  
	
  10.9

  	
  Agents Under Guaranty

  	
  95

  
	
  10.10

  	
  No Other Duties, etc.

  	
  96

  
	
   

  	
   

  	
   

  
	
  SECTION 11.
  SUBSIDIARY BORROWERS

  	
  96

  
	
   

  	
   

  
	
  11.1

  	
  Joinder of Subsidiary
  Borrowers

  	
  96

  
	
  11.2

  	
  Termination of Status as
  Subsidiary Borrower

  	
  98

  



 


iv

















 


EXHIBITS


 


	
  I

  	
   

  	
  Form of Notice of
  Borrowing

  
	
  II

  	
   

  	
  Form of
  Conversion/Continuation Notice

  
	
  III

  	
   

  	
  Form of Note

  
	
  IV

  	
   

  	
  Form of Certificate
  Re Non-Bank Status

  
	
  V

  	
   

  	
  Form of Assignment
  Agreement

  
	
  VI

  	
   

  	
  Form of Issuance
  Notice

  
	
  VII

  	
   

  	
  Form of Secretary’s
  Certificate

  
	
  VIII

  	
   

  	
  Form of Officer’s
  Certificate

  
	
  IX

  	
   

  	
  Form of Joinder
  Agreement

  



 


v

















 


SCHEDULES


 


	
  2.1A

  	
   

  	
  Lenders’ Commitments and
  Pro Rata Shares

  
	
  3.1F

  	
   

  	
  Litigation

  
	
  6.1

  	
   

  	
  Liens

  
	
  6.2

  	
   

  	
  Subsidiary Indebtedness

  
	
  6.10

  	
   

  	
  Transactions with
  Affiliates

  



 


vi






 


 












 


CREDIT AGREEMENT AND GUARANTY


 


This CREDIT AGREEMENT AND
GUARANTY is dated as of October 14, 2009 and entered into by and among
Hospira, Inc., a Delaware corporation (the “Borrower”), the Subsidiary Borrowers from time to time party
hereto, the banks and financial institutions listed on the signature
pages hereof (collectively, the “Initial
Lenders”), Citigroup Global Markets, Inc. (“CGMI”), RBS Securities Inc. (“RBS Securities”) and Morgan Stanley Senior
Funding, Inc. (“MSSF”) as
joint lead bookrunners and joint lead arrangers (in such capacity, the “Lead Arrangers”), The Royal Bank of
Scotland plc (“RBS”) and MSSF as
joint syndication agents (in such capacity, the “Syndication Agents”), BANK OF AMERICA, N.A. and WACHOVIA BANK,
N.A., A WELLS FARGO COMPANY, as co-documentation agents (in such capacity, the “Documentation Agents”), and Citibank, N.A.
as administrative agent for the Lenders (“Citibank”
and in such capacity, the “Administrative
Agent”).


 


PRELIMINARY STATEMENTS


 


The Credit Parties have
requested, and the Lenders have agreed to extend, revolving loans and letters
of credit in the amount and on the terms and conditions set forth herein.


 


NOW,
THEREFORE, in consideration of the mutual agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Credit Parties, the Lenders,
the Lead Arrangers, the Syndication Agents and the Administrative Agent agree
as follows:


 


SECTION 1.                            DEFINITIONS


 


1.1                               Certain Defined Terms.


 


The following terms used in
this Agreement shall have the following meanings:


 


“Acquisition” means the purchase or other
acquisition (by merger or otherwise) by a Person of all or substantially all of
the assets of, or all of the Capital Stock of, or a business line or unit or a
division of, any other Person.


 


“Administrative Agent” shall have the meaning ascribed to such
term in the introduction to this Agreement.


 


“Affected Lender” shall have the meaning ascribed to such term
in Section 2.9B.


 


“Affiliate” means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person. For the purposes of this definition, “control” (including,
with correlative meanings, the terms “controlling”, “controlled by” and “under
common control with”), as applied to any Person, means the possession, directly
or indirectly, of the power (i) to vote 10% or more of the Securities
having ordinary voting power for the election of directors of such Person or
(ii) to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise.


 

















 


“Agents” means the Administrative Agent, the Syndication Agents
and the Documentation Agents, collectively, and also means and includes any
successor Administrative Agent appointed pursuant to Section 10.6.


 


“Aggregate Amounts Due” shall have the meaning ascribed to such
term in Section 9.19.


 


“Agreement” means this Credit Agreement and Guaranty as it may
be amended, supplemented or otherwise modified from time to time.


 


“Alternative Currency” means Euros, Canadian dollars, pounds
sterling, Japanese yen or any other currency that is acceptable to all Lenders.


 


“Alternative Currency Loan” means a LIBOR Rate Loan made in an
Alternative Currency pursuant to the applicable Notice of Borrowing or a
Canadian Prime Rate Loan.


 


“Alternative Currency Sublimit” means a Dollar Amount of
$100,000,000.


 


“Applicable Currency” means, as to any particular payment or
Loan, the currency in which it is denominated or payable.


 


“Applicable Law” means all applicable provisions of
constitutions, laws, statutes, ordinances, rules, treaties, regulations,
permits, licenses, approvals, interpretations and orders of courts or Governmental
Authorities and all orders and decrees of all courts and arbitrators.


 


“Applicable Margin” means, as of any date, a percentage per
annum determined by reference to the applicable Performance Level with respect
to the Borrower in effect on such date, as set forth below:


 


2

















 




	
  Performance Level

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  	
  Level V

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base Rate
  Applicable Margin

  	
   

  	
  1.250

  	
  %

  	
  1.375

  	
  %

  	
  1.500

  	
  %

  	
  1.625

  	
  %

  	
  2.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR
  Applicable Margin

  	
   

  	
  2.250

  	
  %

  	
  2.375

  	
  %

  	
  2.500

  	
  %

  	
  2.625

  	
  %

  	
  3.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility
  Fee

  	
   

  	
  0.250

  	
  %

  	
  0.375

  	
  %

  	
  0.500

  	
  %

  	
  0.625

  	
  %

  	
  0.750

  	
  %

  






 


For purposes hereof, “Performance Level” means, with respect to
the Borrower, Performance Level I, Performance Level II, Performance Level III,
Performance Level IV or Performance Level V, as identified by reference to the
public debt rating of the Borrower, as the case may be, in effect on such date
as set forth below:


 




	
  Performance
  Level

  	
   

  	
  Public Debt Rating

  
	
   

  	
   

  	
   

  
	
  Level
  I

  	
   

  	
  Long Term Senior Unsecured
  Debt rated greater than or equal to A- by
  S&P or A3 by Moody’s 

  
	
   

  	
   

  	
   

  
	
  Level
  II

  	
   

  	
  Long Term Senior Unsecured
  Debt rated greater than or equal to BBB+ by
  S&P or Baa1 by Moody’s

  
	
   

  	
   

  	
   

  
	
  Level
  III

  	
   

  	
  Long Term Senior Unsecured
  Debt rated greater than or equal to BBB by
  S&P or Baa2 by Moody’s 

  
	
   

  	
   

  	
   

  
	
  Level
  IV

  	
   

  	
  Long Term Senior Unsecured
  Debt rated greater than or equal to BBB- by
  S&P or Baa3 by Moody’s 

  
	
   

  	
   

  	
   

  
	
  Level
  V

  	
   

  	
  Long Term Senior Unsecured
  Debt rated less than BBB- by
  S&P or Baa3 by Moody’s, and
  at all other times (including if such ratings are not available from both
  S&P and Moody’s) 

  






 


For purposes of this
definition, the Performance Level shall be determined by the applicable public
debt rating for the Borrower as follows: (i) the public debt ratings shall
be determined by the then-current rating announced by either S&P or
Moody’s, as the case may be, for any class of non-credit-enhanced long-term
senior unsecured debt issued by the Borrower; (ii) if only one of S&P
and Moody’s shall have in effect such a public debt rating, the Performance
Level shall be determined by reference to the applicable rating; (iii) if
neither S&P nor Moody’s shall have in effect such a public debt rating, the
applicable Performance Level will be Level V; (iv) if such public debt
ratings established by S&P and Moody’s shall fall within different levels,
the public debt rating will be determined by the higher of the two ratings, provided
that, in the event that the lower of such public debt ratings is more than one
level below the higher of such public debt ratings, the public debt rating will
be determined based upon the level that is one level above the lower of such
public debt ratings; (v) if any such public debt rating established by
S&P or Moody’s shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating agency
making such change; and (vi) if S&P or Moody’s shall change the basis
on which such public debt ratings are


 


3

















 


established, each reference
to the public debt rating announced by S&P or Moody’s, as the case may be,
shall refer to the then-equivalent rating by S&P or Moody’s, as the case
may be.


 


“Applicable Reserve Requirement” means, at any time with respect
to any Lender, for any LIBOR Rate Loan, the rate, expressed as a decimal, at
which reserves (including any basic marginal, special, supplemental, emergency
or other reserves) are required to be maintained by such Lender against “Eurocurrency
liabilities” (as such term is defined in Regulation D) under regulations issued
from time to time by the Board of Governors of the Federal Reserve System or
other applicable banking regulator. Without limiting the effect of the
foregoing, the Applicable Reserve Requirement shall reflect any other reserves
required to be maintained by the applicable Lender with respect to (i) any
category of liabilities which includes deposits by reference to which the
applicable LIBOR rate is to be determined, or (ii) any category of
extensions of credit or other assets which include LIBOR Rate Loans. For
purposes hereof, a LIBOR Rate Loan shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed subject to reserve requirements without
benefits of credit for proration, exceptions or offsets that may be available
from time to time to the applicable Lender.


 


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


 


“Asset Sale” means a sale, lease or sub-lease (as lessor or
sublessor), sale and leaseback transaction, assignment, conveyance, transfer or
other disposition to, or any exchange of property with, any Person, in one transaction
or a series of transactions, of all or any part of any Credit Party’s or any of
their Subsidiaries’ businesses, properties or assets of any kind, whether real,
personal, or mixed and whether tangible or intangible, whether now owned or
hereafter acquired, including the Capital Stock of any Subsidiary of such
Credit Party, other than such businesses, properties or assets sold in the
ordinary course of business and consistent with past business practice of the
Borrower and its Subsidiaries.


 


“Assignment Agreement” means an assignment agreement,
substantially in the form of Exhibit V hereto, satisfactory in form
and substance to the Administrative Agent.


 


“Assuming Lender” shall have the meaning specified in
Section 2.14B.


 


“Assumption Agreement” shall have the meaning specified in
Section 2.14B.


 


“Available Amount” of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).


 


“Bahamian Subsidiary” means Hospira Ltd.


 


“Bankruptcy Code” means Title 11 of the United States Code
entitled “Bankruptcy”, as now and hereafter in effect, or any successor
statute.


 


“Base Rate” means, for any day, a rate per annum equal to the
greatest of (i) the Prime Rate in effect on such day, (ii) the
Federal Funds Effective Rate in effect on such day plus


 


4

















 


1/2 of 1% and
(iii) (c) the British Bankers Association Interest Settlement Rate
applicable to Dollars for a period of one month (“One Month LIBOR”) plus 1.00% (for the avoidance of doubt, the
One Month LIBOR for any day shall be based on the rate appearing on Reuters
LIBOR01 Page (or other commercially available source providing such
quotations as designated by the Agent from time to time) at approximately
11:00 a.m. London time on such day. Any change in the Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or One Month LIBOR
shall be effective on the effective day of such change in the Prime Rate, the
Federal Funds Effective Rate or One Month LIBOR, respectively.


 


“Base Rate Loan” means a Loan bearing interest at a rate
determined by reference to the Base Rate or, with regard to a Loan denominated
in Canadian Dollars, the Canadian Prime Rate.


 


“Beneficiary” means each Agent, the Issuing Bank and Lender.


 


“Borrower” shall have the meaning ascribed to such term in the
introduction to this Agreement.


 


“Borrower Commercial Paper Debt” means short-term Indebtedness
incurred by the Borrower in the ordinary course of business of the Borrower and
pursuant to the Borrower’s commercial paper program.


 


“Borrowing” means a borrowing consisting of Loans of the same
Type that (i) are made to the same Borrower, (ii) are made, continued
or converted on the same day and (iii) in the case of LIBOR Rate Loans,
have the same Interest Period.


 


“Business Day” means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City, or, with respect to the
obligations of any Subsidiary Borrower, Toronto, Canada or London, England, as
applicable, are authorized or required by law to remain closed, provided
that (a) when used in connection with a LIBOR Rate 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, (b) when used in
connection with an Alternative Currency Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in deposits in
the applicable Alternative Currency in the London interbank market and
(c) when used in connection with any Loan denominated in Euros, the term “Business
Day” shall also exclude any day on which the TARGET payment system is not open
for the settlement of payment in Euro.


 


“Canadian Dollars” means the lawful money of Canada.


 


“Canadian Prime Rate” means, on any day, the annual rate of
interest (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the
greater of:


 


(a)           the annual rate of interest announced from time to time by
Citibank, N.A. as its prime rate in effect on such day for determining interest
rates on Canadian Dollar denominated commercial loans in Canada; and


 


5

















 


(b)           the annual rate of interest equal to the sum of
(A) the CDOR Rate in effect on such day and (B) 1%.


 


“Canadian Subsidiary” means Hospira Healthcare Corporation, a
corporation organized under the Canada Business Corporations Act.


 


“Capital Lease”, as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.


 


“Capital Stock” means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation), including partnership interests and membership interests, and any
and all warrants, rights or options to purchase or other arrangements or rights
to acquire any of the foregoing.


 


“Cash” means money, currency or a credit balance in any demand
or deposit account.


 


“Cash Equivalents” means, as at any date of determination,
(i) marketable securities (a) issued or directly and unconditionally
guaranteed as to interest and principal by the United States government or
(b) issued by any agency of the United States the obligations of which are
backed by the full faith and credit of the United States, in each case maturing
within one year after such date; (ii) marketable direct obligations issued
by any state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof, in each case maturing within
one year after such date and having, at the time of the acquisition thereof, a
rating of at least A 1 from S&P or at least P 1 from Moody’s;
(iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating
of at least A 1 from S&P or at least P 1 from Moody’s;
(iv) certificates of deposit or bankers’ acceptances maturing within one
year after such date and issued or accepted by any Lender or by any commercial
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia that (a) is at least “adequately
capitalized” (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of
not less than $100,000,000; (v) shares of any money market mutual fund
that (a) has substantially all of its assets invested continuously in the
types of investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000 and (c) has the highest rating
obtainable from either S&P or Moody’s; and (vi) in the case of any
Credit Party or Subsidiary of a Credit Party doing business outside the United
States, any obligation that is substantially similar or comparable to the
obligations described above and that is customary in the applicable
jurisdiction in which such Subsidiary is doing business.


 


“CDOR Rate” means, on any date, the annual rate of interest
which is the average of the rates of Canadian Dollars bankers’ acceptances for
a term of thirty (30) days which appear on the “Reuters Screen CDOR Page” at
approximately 10:00 a.m. (Toronto time), on such date, or if such date is
not a Business Day, then on the immediately preceding Business Day; provided,
that if such rate does not appear on the Reuters Screen CDOR Page as


 


6

















 


contemplated, the CDOR Rate
on any date shall be the annual rate of interest quoted to Citibank, N.A. for
such bankers’ acceptances for a term of thirty (30) days.


 


“Certificate re Non-Bank Status” means a certificate
substantially in the form of Exhibit IV annexed hereto delivered by
a Lender to the Administrative Agent pursuant to Section 2.8 B(iii)(b).


 


“CGMI” shall have the meaning ascribed to such term in the
introduction to this Agreement.


 


“Change of Control” means (i) any Person or “group”
(within the meaning of Rules 13d 3 and 13d 5 under the Exchange Act) shall
have acquired beneficial ownership of 30% or more on a fully diluted basis of
the voting and/or economic interest in the Capital Stock of the Borrower;
(ii) any Person or “group” (within the meaning of Rules 13d 3 and 13d
5 under the Exchange Act) shall have obtained the power (whether or not
exercised) to elect a majority of the members of the board of directors (or
similar governing body) of the Borrower; (iii) during any period of up to
24 consecutive months, commencing before or after the date of this Agreement, a
majority of the members of the board of directors of the Borrower shall not be
Continuing Directors; (iv) any Person or “group” (within the meaning of
Rules 13d 3 and 13d 5 under the Exchange Act) shall have acquired by
contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation, will result in its or their acquisition of the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower or (v) an event of series of events
resulting in the Borrower ceasing to (i) beneficially own and control 100%
on a fully diluted basis of the economic and voting interests in the Capital
Stock of any Subsidiary Borrower (other than directors’ qualifying shares) or
(ii) have the power to elect a majority of the members of the board of
directors (or similar governing body) of any Subsidiary Borrower.


 


“Citibank” shall have the meaning ascribed to such term in the
introduction to this Agreement.


 


“Commitment” means the Dollar Amount of the commitment of a
Lender to make or otherwise fund any Loan and to acquire participations in
Letters of Credit hereunder and “Commitments”
means such commitments of all Lenders in the aggregate. The amount of each
Lender’s Commitment, if any, is set forth on Schedule  2.1A
or in the applicable Assumption Agreement or Assignment Agreement, as the case
may be, subject to any adjustment, increase or reduction pursuant to the terms
and conditions hereof. The aggregate amount of the Commitments as of the
Effective Date is $700,000,000.


 


“Commitment Increase” means an increase in the aggregate amount
of the Commitments pursuant to Section 2.14.


 


“Commitment Period” means the period from the Effective Date to
but excluding the Maturity Date.


 


“Compliance Certificate” means a certificate of the chief
financial officer, treasurer or controller of the Borrower setting forth
computations in reasonable detail demonstrating (i) compliance with the
covenants set forth in Section 6.11, as at the end of the


 


7

















 


period covered by such
financial statements, and (ii) certifying that such officer has obtained
no knowledge of any Potential Event of Default or Event of Default except as
specified in such certificate.


 


“Consolidated Adjusted EBITDA” means, in respect of the
Borrower and its Subsidiaries on a consolidated basis, for any period, an
amount equal to (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated Net Income, (b) Consolidated Financing
Expense, (c) provisions for taxes based on income, (d) total
depreciation expense, (e) total amortization expense, (f) other
non-Cash items reducing Consolidated Net Income (excluding any such non-Cash
item to the extent that it represents an accrual or reserve for potential Cash
items in any future period or amortization of a prepaid Cash item that was paid
in a prior period) and (g) Permitted Addbacks, minus
(ii) other non-Cash items increasing Consolidated Net Income for such
period (excluding any such non-Cash item to the extent it represents the
reversal of an accrual or reserve for potential Cash item in any prior period);
provided that “Consolidated Adjusted EBITDA” for the fiscal quarters
ending December 31, 2008, March 31, 2009 and June 30, 2009 shall be deemed to
be $236,727,000, $195,890,000 and $217,680,000, respectively.


 


“Consolidated Financing Expense” means, in respect of the
Borrower and its Subsidiaries on a consolidated basis, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries, including all commissions,
discounts and other fees and charges owed with respect to any letters of credit
and bankers’ acceptance financing and net costs under Interest Rate Agreements;
provided that “Consolidated Financing Expense” for the fiscal quarters
ending December 31, 2008, March 31, 2009 and June 30, 2009 shall be deemed to
be $29,493,000, $26,998,000 and 28,341,000, respectively.


 


“Consolidated Net Income” means, in respect of the Borrower and
its Subsidiaries on a consolidated basis, for any period, (i) the net
income (or loss) for the Borrower and its Subsidiaries for such period taken as
a single accounting period determined in conformity with GAAP, minus
(ii) (a) the income (or loss) of any Person (other than a Subsidiary
of the Borrower) in which any other Person (other than the Borrower or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries by such Person during such period, (b) the income (or loss)
of any Person accrued prior to the date it becomes a Subsidiary of the Borrower
or is merged into or consolidated with the Borrower or any of its Subsidiaries
or that Person’s assets are acquired by the Borrower or any of its
Subsidiaries, (c) the income of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary,
(d) any after-tax gains or losses attributable to Asset Sales or returned
surplus assets of any Pension Plan, and (e) (to the extent not included in
clauses (a) through (d) above) any net extraordinary gains or net
non-cash extraordinary losses.


 


“Consolidated Net Worth” means, at any date of determination,
all items which in conformity with GAAP would be included under shareholders’
equity on a consolidated balance sheet of the Borrower and its Subsidiaries.


 


8

















 


“Consolidated Total Debt” means, in respect of the Borrower and
its Subsidiaries on a consolidated basis, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness, determined on a
consolidated basis in accordance with GAAP.


 


“Continuing Director” as applied to any Person, means, for any
period, an individual who is a member of the board of directors of such Person
on the first day of such period or whose election to the board of directors of
such Person is approved by a majority of the other Continuing Directors.


 


“Contractual Obligation”, as applied to any Person, means any
provision of any securities issued by that Person or of any indenture,
mortgage, deed of trust, or other material contract, undertaking, agreement or
other material instrument to which that Person is a party or by which it or any
of its properties is bound or to which it or any of its properties is subject.


 


“Conversion/Continuation Date” means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.


 


“Conversion/Continuation Notice” means a
Conversion/Continuation Notice substantially in the form of Exhibit II.


 


“Credit Date” means the date of a Credit Extension.


 


“Credit Exposure” means, with respect to any Lender as of any
date of determination, (i) prior to the termination of the Commitments,
that Lender’s Commitment; and (ii) after the termination of the
Commitments, the sum of (a) the aggregate outstanding principal amount of
the Loans of that Lender, (b) in the case of the Issuing Bank, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by
that Lender (net of any participations by Lenders in such Letters of Credit),
and (c) the aggregate amount of all participations by that Lender in any
outstanding Letters of Credit or any unreimbursed drawing under any Letter of
Credit.


 


“Credit Extension” means the making of a Loan or the issuing of
a Letter of Credit.


 


“Credit Party” means each Person (other than any Agent, Lead
Arranger, the Issuing Bank or any Lender or other representative thereof) from
time to time party to a Loan Document.


 


“Currency Agreement” means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement.


 


“Default Excess” means, with respect to any Defaulting Lender,
the excess, if any, of such Defaulting Lender’s Pro Rata Share of the aggregate
outstanding principal amount of Loans of all Lenders (calculated as if all Defaulting
Lenders had funded all of their respective Defaulted Loans) over the aggregate
outstanding principal amount of all Loans of such Defaulting Lender.


 


9

















 


“Default Period” means, with respect to any Defaulting Lender,
the period commencing on the date of the applicable Funding Default and ending
on the earliest of the following dates: (i) the date on which all
Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the
Default Excess with respect to such Defaulting Lender shall have been reduced
to zero (whether by the funding by such Defaulting Lender of any Defaulted
Loans of such Defaulting Lender or by the non pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of
Section 2.7B) and (b) such Defaulting Lender shall have delivered to
the Credit Parties and the Administrative Agent a written reaffirmation of its
intention to honor its obligations hereunder with respect to its Commitment,
and (iii) the date on which the Credit Parties, the Administrative Agent
and the Requisite Lenders waive all Funding Defaults of such Defaulting Lender
in writing.


 


“Defaulted Loan” shall have the meaning ascribed to such term
in Section 2.11.


 


“Defaulting Lender” shall have the meaning ascribed to such
term in Section 2.11.


 


“Deposit Account” means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.


 


“Disclosed Litigation” shall have the meaning ascribed to such
term in Section 3.1F.


 


“Documentation Agents” shall have the meaning ascribed to such
term in the introduction to this Agreement.


 


“Dollar-Denominated Loan” means a Loan that is made in Dollars.


 


“Dollar Amount” means, at any time:


 


(a)                                  with respect to
any Dollar-Denominated Loan, the principal amount thereof then outstanding;


 


(b)                                 with respect to
any Alternative Currency Loan, the principal amount thereof then outstanding in
the relevant Alternative Currency, converted to Dollars in accordance with
Section 2.10; and


 


(c)                                  with respect to
any Letter of Credit, the amount thereof.


 


“Dollars” and the sign “$”
mean the lawful money of the United States of America.


 


“Effective Date” means the date on which the conditions
specified in Section 3.1 are satisfied or waived in accordance with
Section 9.6.


 


10
















 


“Eligible Assignee” means (A) any Lender and any Affiliate
of any Lender; and (B) any commercial bank, savings and loan association,
savings bank, insurance company, investment or mutual fund or other entity that
is an “accredited investor” (as defined in Regulation D under the Securities
Act) and which extends credit or buys loans as one of its businesses; provided
that none of the Borrower, an Affiliate of the Borrower or any of its
Subsidiaries shall be an Eligible Assignee.


 


“Employee Benefit Plan” means any “employee benefit plan” as
defined in Section 3(3) of ERISA (other than a Multiemployer Plan)
which is or was maintained or contributed to by the Borrower or any of its
ERISA Affiliates.


 


“Environmental Claim” means any investigation, notice, notice
of violation, claim, action, suit, proceeding, order, consent decree,
settlement, demand, abatement order or other order or directive (conditional or
otherwise), by any Governmental Authority or any other Person, arising
(i) pursuant to or in connection with any actual or alleged violation of
any Environmental Law, (ii) in connection with any Hazardous Materials or
any actual or alleged Hazardous Materials Activity or (iii) in connection
with any actual or alleged damage, injury, threat or harm to health, safety,
natural resources or the environment.


 


“Environmental Laws” means any and all current or future
federal, state, local and foreign laws and regulations, statutes, ordinances,
orders, rules, guidance documents, judgments, Governmental Authorizations, or
any other requirements of Governmental Authorities relating to
(i) environmental matters, including those relating to any Hazardous
Materials Activity, (ii) the generation, use, storage, transportation or
disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare.


 


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


 


“ERISA Affiliate” means, as applied to any Person, (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that
Person is a member; (ii) any trade or business (whether or not
incorporated) which is a member of a group of trades or businesses under common
control within the meaning of Section 414(c) of the Internal Revenue
Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or
(o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause
(ii) above is a member.


 


“ERISA Event” means (i) a “reportable event” within the meaning
of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which 30-day notice to the
PBGC has been waived); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with
Section 412(d) of the Internal Revenue Code) or the failure to make
by its due date a required installment under Section 412(m) of the
Internal Revenue Code with respect to any Pension Plan or the failure to make
any required contribution to a Multiemployer Plan; (iii) the provision by
the administrator of any Pension Plan


 


11

















 


pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the withdrawal by the Borrower or any of its ERISA Affiliates from
any Pension Plan with two or more contributing sponsors or the termination of
any such Pension Plan resulting in liability pursuant to Section 4063 or
4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate
any Pension Plan, or the occurrence of any event or condition which might
reasonably constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on the Borrower or any of its ERISA Affiliates pursuant
to Section 4062(e) or 4069 of ERISA or by reason of the application
of Section 4212(c) of ERISA; (vii) the withdrawal by the
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates
in a complete or partial withdrawal (within the meaning of Sections 4203 and
4205 of ERISA) from any Multiemployer Plan if there is any potential withdrawal
liability to the Borrower or any of its ERISA Affiliates as a result of the
withdrawal, or the receipt by the Borrower or any of its ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate
or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on the
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates
of fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409, Section 502(c), (i) or (l),
or Section 4071 of ERISA in respect of any Employee Benefit Plan, in each
case in an amount that would be material; (ix) the assertion of a claim
(other than routine claims for benefits) against any Employee Benefit Plan or
the assets thereof, or against the Borrower or any of its ERISA Affiliates in
connection with any Employee Benefit Plan, if, in any such case, such claim
would  reasonably be
expected to result in any material liability; (x) receipt from the
Internal Revenue Service of notice of the failure of any Pension Plan to
qualify under Section 401(a) of the Internal Revenue Code, or the
failure of any trust forming part of any Pension Plan to qualify for exemption from
taxation under Section 501(a) of the Internal Revenue Code if, in
either case, such failure would reasonably be expected to result in any
material liability for the Borrower or any of its ERISA Affiliates; or (xi) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.


 


“Euro” means the single currency of the members of the European
Union from time to time that adopt a single, shared currency.


 


“Event of Default” means each of the events set forth in
Section 8.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.


 


“Facilities” means any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by the Borrower or any of its
Subsidiaries or any of their respective predecessors or Affiliates.


 


“Facility Fee” shall have the meaning ascribed to such term in
Section 2.6(i)(a).


 


12

















 


“Federal Funds Effective Rate” means for any day, the rate per
annum (expressed, as a decimal, rounded upwards, if necessary, to the next
higher 1/100 of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided
(i) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (ii) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate charged to Administrative Agent, in its
capacity as a Lender, on such day on such transactions as determined by the
Administrative Agent.


 


“Fee Letter” means the Fee Letter, dated September 18, 2009,
among the Borrower, Citibank and CGMI, as the same may be amended, supplemented
or otherwise modified from time to time.


 


“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.


 


“Fiscal Year” means the fiscal year of the Borrower and its
Subsidiaries ending on December 31 of each calendar year (excluding any
Subsidiary of the Borrower that is acquired after the date hereof that has not
yet changed its fiscal year to a calendar year). For purposes of this
Agreement, any particular Fiscal Year shall be designated by reference to the
calendar year in which such Fiscal Year ends.


 


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


 


“Funding and Payment Office” means, for each of the Administrative
Agent and the Issuing Bank, the office of such Person as set forth under the
such Person’s name on the signature pages hereof, or such other office
designated in a written notice delivered by the Administrative Agent or the
Issuing Bank to the Borrower and each Lender.


 


“Funding Default” shall have the meaning ascribed to such term
in Section 2.11.


 


“GAAP” means, subject to the limitations on the application
thereof set forth in Section 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the United States accounting profession, in each case as the same are
applicable to the circumstances as of the date of determination.


 


“Governmental Acts” means any act or omission, whether rightful
or wrongful, of any present or future de
jure or de facto
government or Governmental Authority.


 


“Governmental Authority” means any federal, state, municipal,
national or other government, governmental department, commission, board,
bureau, court, agency or


 


13

















 


instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to any
government or any court, in each case whether associated with a state of the
United States, the United States, or a foreign entity or government.


 


“Governmental Authorization” means any permit, license,
authorization, plan, directive, registration with, approval of, consent order
or consent decree of or from, or notice to any Governmental Authority.


 


“Guaranteed Obligations” shall have the meaning ascribed to
such term in Section 7.1.


 


“Guarantor” means the Borrower.


 


“Guaranty” means the guaranty of the Guarantor set forth in
Section 7.


 


“Hazardous Materials” means any chemical, material or
substance, (i) exposure to which is prohibited or limited by any
Governmental Authority, (ii) which is designated, classified or regulated
as “hazardous” or “toxic” or as a “pollutant” or “contaminant” under any
Environmental Law or (iii) which may or could pose a hazard to the health
and safety of the owners, occupants or any Persons in the vicinity of any
Facility or to the indoor or outdoor environment.


 


“Hazardous Materials Activity” means any past, current,
proposed or threatened activity, event or occurrence involving any Hazardous
Materials, including the use, manufacture, possession, storage, holding,
presence, existence, location, Release, threatened Release, discharge,
placement, generation, transportation, processing, construction, treatment,
abatement, removal, remediation, disposal, disposition or handling of any
Hazardous Materials, and any corrective action or response action with respect
to any of the foregoing.


 


“Highest Lawful Rate” shall have the meaning ascribed to such
term in Section 9.22.


 


“Increase Date” shall have the meaning specified in
Section 2.14A.


 


“Increasing Lender” shall have the meaning specified in
Section 2.14A.


 


“Indebtedness”, as applied to any Person, means (without
duplication) (i) all indebtedness for borrowed money; (ii) that
portion of obligations with respect to Capital Leases that is classified as a
liability on a balance sheet in conformity with GAAP; (iii) notes payable
and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money; (iv) any obligation owed for
all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price is
(a) due more than six months from the date of incurrence of the obligation
in respect thereof or (b) evidenced by a note or similar written
instrument; (v) all indebtedness secured by any Lien on any property or
asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person; (vi) the face amount of any letter of credit issued
for the account of that


 


14

















 


Person or as to which that
Person is otherwise liable for reimbursement of drawings; (vii) the direct
or indirect guaranty, endorsement (otherwise than for collection or deposit in
the ordinary course of business), co-making, discounting with recourse or sale
with recourse by such Person of the obligation of another; (viii) any
obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the
holders thereof will be protected (in whole or in part) against loss in respect
thereof; and (ix) any liability of such Person for an obligation of
another through any agreement (contingent or otherwise) (a) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise)
or (b) to maintain the solvency or any balance sheet item, level of income
or financial condition of another if, in the case of any agreement described
under subclauses (a) or (b) of this clause (ix), the primary purpose
or intent thereof is as described in clause (viii) above.


 


“Indemnitees” shall have the meaning ascribed to such term in
Section 9.3.


 


“Indemnified Liabilities” shall have the meaning ascribed to
such term in Section 9.3.


 


“Initial Lenders” shall have the meaning ascribed to such term
in the introduction to this Agreement.


 


“Interest Coverage Ratio” means the ratio as of the last day of
any Fiscal Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal
Quarter period then ended, to (ii) Consolidated Financing Expense for such
four-Fiscal Quarter period.


 


“Interest Payment Date” means with respect to (i) any Base
Rate Loan, each March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Effective Date, and the
Maturity Date and (ii) any LIBOR Rate Loan, the last day of each Interest
Period and, if any Interest Period is longer than three months, the date that
is three months after the first day of such Interest Period, provided
that, if any Interest Payment Date would otherwise fall on a day which is not a
Business Day, it shall be postponed to the next day which is a Business Day.


 


“Interest Period” shall have the meaning ascribed to such term
in Section 2.5B.


 


“Interest Rate Agreement” means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement.


 


“Interest Rate Determination Date” means, with respect to any
Interest Period, the second Business Day prior to the first day of such
Interest Period.


 


“Internal Revenue Code” means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, and any
successor statute.


 


“Irish Subsidiary” means Hospira, an organization organized
under the laws of Ireland.


 


15

















 


“Issuance” with respect to any Letter of Credit means the
issuance, amendment, renewal or extension of such Letter of Credit.


 


“Issuance Notice” means an Issuance Notice substantially in the
form of Exhibit VI.


 


“Issuing Bank” means any Lender that has agreed to become an
Issuing Bank and has been approved as an Issuing Bank by the Administrative
Agent and the Borrower, together with its permitted successors and assigns in
such capacity.


 


“Joinder Agreement” means a Joinder Agreement substantially in
the form of Exhibit IX, with such amendments or modifications as
may be approved by the Administrative Agent.


 


“Joinder Date” means the date on which the conditions specified
in Section 11 are satisfied or waived in accordance with Section 9.6.


 


“Joint Venture” means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any corporate Subsidiary of any Person be considered a
Joint Venture to which such Person is a party.


 


“Lead Arrangers” shall have the meaning ascribed to such term
in the introduction to this Agreement.


 


“Lender” and “Lenders”
shall mean the Initial Lenders, each Assuming Lender that shall become a party
hereto pursuant to Section 2.14 and each Person that shall become a party
hereto pursuant to Section 9.15.


 


“Letter of Credit” means a commercial or standby letter of
credit issued or to be issued by the Issuing Bank pursuant to this Agreement.


 


“Letter of Credit Agreement” has the meaning specified in
Section 2.2B.


 


“Letter of Credit Sublimit” means the lesser of
(i) $100,000,000 and (ii) the aggregate unused amount of the
Commitments then in effect.


 


“Letter of Credit Usage” means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is, or at
any time thereafter may become, available for drawing under all Letters of
Credit then outstanding, and (ii) the aggregate amount of all drawings
under Letters of Credit honored by the Issuing Bank and not theretofore
reimbursed by or on behalf of the Borrower.


 


“Leverage Ratio” means, in respect of the Borrower and its
Subsidiaries on a consolidated basis, the ratio of (i) Consolidated Total
Debt as of the last day of any Fiscal Quarter to (ii) Consolidated Adjusted
EBITDA for the four-Fiscal Quarter period then ended.


 


16

















 


“LIBOR” means, for any Interest Rate Determination Date, the
offered rate in the London interbank market for deposits in Dollars or the
relevant Alternative Currency offered for a term comparable to such Interest
Period that appears on Reuters LIBOR01 Page as of approximately
11:00 A.M., London time (or such other page as may replace such
page on such service for the purpose of displaying the rates at which such
Dollar or Alternative Currency deposits are offered by leading banks in the
London interbank deposit market), or if no quotation appears on Reuters LIBOR01
Page, the average rate per annum which the offices of four leading banks
selected by the Administrative Agent and located in London offer for deposits
in Dollars or the relevant Alternative Currency in the London interbank deposit
market at approximately 11:00 a.m. (London time).


 


“LIBOR Rate Loan” means any Loan bearing interest at a rate
calculated with respect to LIBOR.


 


“Lien” means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any agreement
to give any security interest) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing.


 


“Loan” means a loan made by a Lender to a Credit Party pursuant
to Section 2.1A.


 


“Loan Documents” means this Agreement, the Fee Letter, any
Note, any Joinder Agreement and any letter of credit application or
reimbursement agreement executed by the Borrower in favor of the Issuing Bank
relating to Letters of Credit.


 


“Margin Stock” shall have the meaning ascribed to such term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.


 


“Material Adverse Effect” means a material adverse effect upon
(i) the business, operations, properties or condition (financial or otherwise)
of the Borrower and its Subsidiaries, taken as a whole, (ii) the ability
of the Borrower to perform, or of the Administrative Agent to enforce, any of
the Obligations of the Borrower (including the Obligations under Section 7
hereof) or (iii) the legality, validity, binding effect or enforceability
against the Borrower (or any Subsidiary Borrower that has outstanding or has
requested Alternative Currency Loans) of a Loan Document to which it is a
party. For the avoidance of doubt, changes or effects resulting from items
related to Permitted Addbacks shall not be considered in determining whether a
Material Adverse Effect has occurred.


 


“Maturity Date” means the earliest to occur of (i) the
third anniversary of the Effective Date, (ii) the date the Commitments are
permanently reduced to zero pursuant to Section 2.7B, and (iii) the
date of the termination of the Commitments pursuant to Section 8.


 


“Mayne Pharma” means Mayne Pharma Limited ACN 097 064 330.


 


“Mayne Pharma Acquisition” means the acquisition by Hospira
Holdings (S.A.) Pty Ltd of all of the stock of Mayne Pharma.


 


17

















 


“Moody’s” means Moody’s Investor Services, Inc. or any
successor thereto.


 


“MSSF” shall have the meaning ascribed to such term in the
introduction to this Agreement.


 


“Multiemployer Plan” means any Employee Benefit Plan which is a
“multiemployer plan” as defined in Section 3(37) of ERISA to which the Borrower
or any of its ERISA Affiliates is obligated to make contributions.


 


“Non-US Lender” shall have the meaning ascribed to such term in
Section 2.8B(iii)(a).


 


“Note” means a promissory note of a Credit Party issued
pursuant to Section 2.4C, substantially in the form of Exhibit III,
as amended, supplemented or otherwise modified from time to time.


 


“Notice of Borrowing” means a notice substantially in the form
of Exhibit I annexed hereto delivered by any Credit Party to the
Administrative Agent pursuant to Section 2.1B with respect to a proposed
Borrowing.


 


“Obligations” means all obligations of every nature of the
Credit Parties from time to time owing to the Agents, the Lead Arrangers and
the Lenders or any of them under the Loan Documents.


 


“Officer’s Certificate” means, as applied to any corporation, a
certificate executed on behalf of such corporation by any one of its chairman
of the board (if an officer), its president, one of its vice presidents, its
chief financial officer or its treasurer or, as applied to any limited
partnership, a certificate executed on behalf of such limited partnership by
the chairman of the board (if an officer), the president, one of the vice
presidents, the chief financial officer or treasurer of the general partner of
such limited partnership, or, if the general partner of such limited
partnership is an individual, executed by such individual; provided that
every Officer’s Certificate with respect to the compliance with a condition
precedent to the making of any Borrowing shall include: (i) a statement
that the officer making or giving such Officer’s Certificate has read such
condition and any definitions or other provisions contained in this Agreement
relating thereto, (ii) a statement that, in the opinion of the signer, he
has made or has caused to be made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such condition has been complied with, and (iii) a statement as to
whether, in the opinion of the signer, such condition has been complied with.


 


“Organizational Documents” means (i) with respect to any
corporation, its certificate or articles of incorporation or organization, as
amended, and its by laws, as amended, (ii) with respect to any limited
partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general
partnership, its partnership agreement, as amended, and (iv) with respect
to any limited liability company, its articles of organization, as amended, and
its operating agreement, as amended. In the event any term or condition of this
Agreement or any other Loan Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official, the
reference to


 


18

















 


any such “Organizational
Document” shall only be to a document of a type customarily certified by such
governmental official.


 


“Patriot Act” shall have the meaning ascribed to such term in
Section 3.1D(ii).


 


“PBGC” means the Pension Benefit Guaranty Corporation and any
successor thereto.


 


“Pension Plan” means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA and which is intended to be qualified
under Section 401(a) of the Code.


 


“Performance Level” shall have the meaning ascribed to such
term within the definition of “Applicable Margin”.


 


“Permitted Addbacks” means each of the following to the extent
taken into account in determining Consolidated Net Income for such period (all
calculated on a consolidated pre-tax basis): (a) any one-time or special
non-cash charges or expenses resulting from the Mayne Pharma Acquisition,
including charges relating to the write-up of Mayne Pharma’s inventory and the
write-off of in-process research and development; (b) the first
$115,000,000 of charges and expenses (whether cash or non-cash) incurred before
December 31, 2008 related to the integration of Mayne Pharma into the Borrower,
including charges and expenses for employee severance or retention, integration
of information systems, plant shutdowns, product relocation and relabeling and
consulting fees); (c) the first $109,000,000 of restructuring charges and
expenses (whether cash or non-cash) incurred after March 31, 2006 and before December
31, 2008 related to the Borrower’s closure of its Ashland, Ohio, Donegal,
Ireland and Montreal, Canada facilities and exit from its North Chicago,
Illinois facility and related expenses (whether cash or non-cash) for the
relocation of production from such facilities to other facilities; and
(d) the first $125,000,000 of non-recurring cash expenses and charges
incurred after September 30, 2009 in connection with Project Fuel (the
previously-announced project to reduce operating costs and optimize manufacturing
capabilities and capacity and related research and development operations).


 


“Permitted Foreign Credit Facilities” means those foreign
credit facilities permitted pursuant to Section 6.2(viii).


 


“Person” means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies,
limited liability partnerships, joint stock companies, Joint Ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental
Authorities.


 


“Potential Defaulting Lender” means any Lender that (a) is
a Defaulting Lender, (b) is or becomes the subject of a bankruptcy or
insolvency proceeding, (c) has notified the Borrower, the Administrative
Agent, the Issuing Bank or any Lender in writing that it does not intend to
comply with any of its funding obligations under this Agreement or has made a
public statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or under other agreements generally in
which it commits to extend credit or (d)


 


19

















 


failed, within three
Business Days after request by the Administrative Agent, to confirm that it
will comply with the terms of this Agreement relating to its obligations to
fund prospective Loans and participations in then outstanding Letters of
Credit, provided that such Lender shall cease to be a Potential
Defaulting Lender under this clause (d) upon receipt of such information; provided,
further, that a Lender shall not be a Potential Defaulting Lender solely
by virtue of the ownership or acquisition of any ownership interest in such
Lender or parent company thereof or the exercise of control over a Lender or
parent company thereof by a governmental authority or instrumentality thereof.


 


“Potential Event of Default” means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.


 


“Prime Rate” means the rate of interest as announced by the
Administrative Agent from time to time as its base rate, as in effect from time
to time. The Prime Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. The Administrative
Agent or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.


 


“Pro Rata Share” means, with respect to any Lender, the
percentage obtained by dividing (a) the Credit Exposure of such Lender by
(b) the aggregate Credit Exposure of all Lenders.


 


“Proceedings” shall have the meaning ascribed to such term in
Section 5.1(vi).


 


“Qualified Receivables Transaction” means any transaction or
series of transactions that may be entered into by the Borrower or any
Subsidiary of the Borrower pursuant to which the Borrower or any such
Subsidiary may sell, convey, pledge or otherwise transfer to a newly-formed
Subsidiary of the Borrower or other special purpose entity, or any other
Person, any accounts receivable (including chattel paper, instruments and
general intangibles) or notes receivable and the rights and certain other
property related thereto, provided that (i) all of the terms and
conditions of such transaction or series of transactions, including the amount
and type of any recourse to the Borrower or a Subsidiary of the Borrower with
respect to the assets transferred, are acceptable to the Administrative Agent
and the Requisite Lenders and (ii) the Receivables Transaction Attributed
Indebtedness incurred in all such transactions does not exceed $150,000,000 at
any time outstanding.


 


“RBS” shall have the meaning ascribed to such term in the
introduction to this Agreement.


 


“RBS Securities” shall have the meaning ascribed to such term
in the introduction to this Agreement.


 


“Receivables Transaction Attributable Indebtedness” means, with
respect to any Qualified Receivables Transaction on any date of determination,
the unrecovered purchase price on such date of all assets sold, conveyed, pledged
or otherwise transferred by the Borrower or any wholly-owned Subsidiary of the
Borrower to the third-party conduit entity or other receivables credit provider
under such Qualified Receivables Transaction.


 


20
















 


“Register” shall have the meaning ascribed to such term in
Section 2.4A.


 


“Regulation D” means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.


 


“Reimbursement Date” shall have the meaning ascribed to such
term in Section 2.2D.


 


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


 


“Release” means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers
or other closed receptacles containing any Hazardous Material), including the
movement of any Hazardous Material through the air, soil, surface water or
groundwater.


 


“Replacement Lender” shall have the meaning ascribed to such
term in Section 2.12.


 


“Requisite Lenders” means Lenders having aggregate Pro Rata
Shares of more than 50%; provided that during a Default Period the
Credit Exposure held or deemed held by any Defaulting Lender shall be excluded
for purposes of making a determination of Requisite Lenders.


 


“Responsible Officer” means the Chief Executive Officer, the
Chief Financial Officer, the Treasurer or the General Counsel of a Credit Party
or any other officer of such Credit Party responsible for overseeing or
reviewing compliance with the Agreement.


 


“Restricted Payment” means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of the Borrower, except a dividend payable solely in shares of
such class of Capital Stock to the holders of such class of Capital Stock;
(ii) any redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares of any class
of Capital Stock of the Borrower; and (iii) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights
to acquire shares of any class of Capital Stock of the Borrower, except any
repurchase or other acquisition of shares of such Capital Stock, or warrants,
options or other rights to acquire such shares, in connection with employee
compensation in the ordinary course of business in accordance with plans
approved by the board of directors of the Borrower.


 


“S&P” means Standard & Poor’s Ratings Group, a
division of The McGraw Hill Corporation or any successor thereto.


 


“Securities” means any stock, share, partnership interest,
membership interest in a limited liability company, voting trust certificates,
certificate of interest or participation in any profit-sharing agreement or
arrangement, option, warrant, bond, debenture, note, or other


 


21

















 


evidence of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of
the foregoing.


 


“Securities Act” means the Securities Act of 1933, as amended
from time to time, and any successor statute.


 


“Significant Subsidiary” means, at any time, a Subsidiary that
has or represents at least 5% of (i) the consolidated gross revenues of
the Borrower and its Subsidiaries for the Fiscal Year then most recently ended
and/or (ii) the consolidated assets of the Borrower and its Subsidiaries
as of the last day of the Fiscal Year then most recently ended.


 


“Spot Rate” means, for any Alternative Currency on any day, the
average of the Administrative Agent’s spot buying and selling rates for the
exchange of such Alternative Currency and Dollars as of approximately
11:00 a.m. (London, England time) on such day.


 


“Subject Transaction” shall have the meaning ascribed to such
term in Section 6.11C.


 


“Subsidiary” means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and
policies thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or a
combination thereof.


 


“Subsidiary Borrower” means any Subsidiary that is designated
as a “Subsidiary Borrower” pursuant to Section 11.


 


“Surviving Obligations” means contingent indemnification
liabilities of the Borrower under the Loan Documents that are not yet due and
payable.


 


“Syndication Agents” shall have the meaning ascribed to such
term in the introduction to this Agreement.


 


“Tax” means any present or future tax, levy, impost, duty,
assessment, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; provided “Tax on the overall net income” of a
Person shall be construed as a reference to a tax imposed by the jurisdiction
in which that Person is organized or in which that Person’s applicable
principal office (and/or, in the case of a Lender, its lending office) is
located or in which that Person (and/or, in the case of a Lender, its lending
office) is deemed to be doing business on all or part of the net income,
profits or gains (whether worldwide, or only insofar as such income, profits or
gains are considered to arise in or to relate to a particular jurisdiction, or
otherwise) of that Person (and/or, in the case of a Lender, its applicable
lending office).


 


22

















 


“Terminated Lender” shall have the meaning ascribed to such
term in Section 2.12.


 


“Total Utilization of Commitments” means, as at any date of
determination, the sum of (i) the aggregate principal amount of all
outstanding Loans plus (ii) the Letter of Credit Usage.


 


“Type of Loan” means a Base Rate Loan or a LIBOR Rate Loan.


 


1.2                               Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.


 


Except as otherwise
expressly provided in this Agreement, all accounting terms not otherwise
defined herein shall have the respective meanings assigned to them in
conformity with GAAP. Calculations in connection with the definitions,
covenants and other provisions of this Agreement shall utilize accounting
principles and policies in effect on the date hereof which are in conformity with
those used to prepare the financial statements referred to in Section 4.4.
Financial statements and other information required to be delivered by the
Borrower to the Administrative Agent pursuant to clauses (i) and
(ii) of Section 5.1 shall be prepared in accordance with GAAP as in
effect at the time of such preparation. In the event that a change in GAAP or
other accounting principles and policies after the date hereof affects in any
material respect the calculations of the covenants contained herein, the
Lenders and the Borrower agree to negotiate in good faith to amend the affected
covenants (and related definitions) to compensate for the effect of such
changes so that the restrictions, limitations and performance standards
effectively imposed by such covenants, as so amended, are substantially
identical to the restrictions, limitations and performance standards imposed by
such covenants as in effect on the date hereof; provided that, if the
Requisite Lenders and the Borrower fail to reach agreement with respect to such
amendment within a reasonable period of time following the date of
effectiveness of any such change, calculation of compliance by the Borrower and
its Subsidiaries with the covenants contained herein shall be determined in
accordance with GAAP as in effect immediately prior to such change.


 


1.3                               Other Definitional Provisions and Rules of Construction.


 


A.                                    Any of the terms defined
herein may, unless the context otherwise requires, be used in the singular or
the plural, depending on the reference.


 


B.                                    References to “Sections” and
subsections shall be to Sections and subsections, respectively, of this
Agreement unless otherwise specifically provided.


 


C.                                    The use in any of the Loan
Documents of the word “include” or “including”, when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting language (such
as “without limitation” or “but not limited to” or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general
statement, term or matter.


 


23

















 


D.                                    Whenever the term “wholly-owned”
is used with respect to a Subsidiary of a Person, such term means that all of
the Capital Stock (other than directors’ qualifying shares) of such Subsidiary
is owned, directly or indirectly, by such Person.


 


SECTION 2.                            AMOUNT AND
TERMS OF COMMITMENTS AND LOANS


 


2.1                              Commitment; Making of Loans; Letters of Credit.


 


A.                                   Commitments.


 


(i)                                     During the
Commitment Period, subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of the Credit Parties herein
set forth, each Lender severally agrees to make Loans (including, with respect
to Alternative Currency Loans, through any Affiliate of such Lender)
(i) denominated in Dollars or any Alternative Currency to the Borrower,
(ii) denominated in Canadian Dollars to the Canadian Subsidiary,
(iii) denominated in Euros to the Irish Subsidiary, (iv) denominated
in Dollars to the Bahamian Subsidiary or (v) denominated in the applicable
Alternative Currency designated by any other Subsidiary Borrower, in an
aggregate amount up to but not exceeding such Lender’s Commitment as set forth
opposite its name on Schedule 2.1A annexed hereto; provided that
after giving effect to the making of any Loans, (i) the Total Utilization
of Commitments shall not exceed the Commitments; (ii) the aggregate Dollar
Amount of all Alternative Currency Loans shall not exceed the Alternative
Currency Sublimit; and (iii) the aggregate Dollar Amount of all Loans to
any particular Subsidiary Borrower shall not exceed $50,000,000.


 


(ii)                                  Each Lender’s
Commitment shall expire on the Maturity Date and all Loans and all other
amounts owed hereunder with respect to the Loans and the Commitment of such
Lender shall be paid in full no later than such date. Amounts borrowed pursuant
to this Section 2.1A may be repaid and reborrowed during the Commitment
Period.


 


B.                                   Borrowing Mechanics.


 


(i)                                     Except pursuant
to 2.2D, each Borrowing shall at all times be in a minimum amount of $5,000,000
or higher integral multiples of 1,000,000 units of the Applicable Currency.


 


(ii)                                  Whenever any
Credit Party desires that the Lenders make Loans, such Credit Party shall
deliver to Administrative Agent on behalf of the Lenders a fully executed and delivered
Notice of Borrowing (a) in the case of LIBOR Rate Loans denominated in
Dollars, not later than 11:00 a.m. (New York City time), at least three
(3) Business Days in advance of the proposed Credit Date; (b) in the
case of LIBOR Rate Loans denominated in an Alternative Currency, not later than
11:00 a.m. (New York City time), at least four (4) Business Days in
advance of the proposed Credit Date; or (c) in the case of Base Rate
Loans, not later than 11:00 a.m. (New York City time), on the proposed Credit
Date. Except as otherwise provided herein, a Notice of Borrowing for LIBOR Rate
Loans shall be irrevocable on and after the related Interest Rate Determination
Date, and the applicable Credit Party shall be bound to borrow such Loans in
accordance therewith. Each Notice of Borrowing shall specify the following
information:


 


(a)                                  the Applicable
Currency;


 


24

















 


(b)                                 the aggregate
amount (in the Applicable Currency) of such Loans;


 


(c)                                  the Credit Date
of such Loans, which shall be a Business Day;


 


(d)                                 whether such
Loans are to be Base Rate Loans or LIBOR Rate Loans;


 


(e)                                  in the case of
LIBOR Rate Loans, the initial Interest Period to be applicable thereto; and


 


(f)                                    the location
and number of the Credit Party’s account, as applicable, to which funds are to
be disbursed.


 


(iii)                               Notice of
receipt of each Notice of Borrowing, together with the amount of each Lender’s
Pro Rata Share thereof, if any, together with the applicable interest rate,
shall be provided by the Administrative Agent to each applicable Lender by
facsimile with reasonable promptness, but (provided the Administrative Agent
shall have received such notice by 11:00 a.m. (New York City time)) not
later than 2:00 p.m. (New York City time) on the same day as the
Administrative Agent’s receipt of such Notice of Borrowing from the applicable
Credit Party.


 


(iv)                              Each Lender
(or, if appropriate, with respect to Alternative Currency Loans, an Affiliate
of such Lender) shall make the amount of its Loan available to the
Administrative Agent on the applicable Credit Date by wire transfer:


 


(a)                                  if such Loan is
to be made in Dollars, not later than 12:00 p.m. (New York City time), or,
if later, not more than one hour after receipt of the Administrative Agent’s
delivery of the notice pursuant to clause (iii) above, in same day funds
in Dollars at the Funding and Payment Office; or


 


(b)                                 if such Loan is
to be made in an Alternative Currency, not later than 12:00 p.m. (London,
England time), in such Alternative Currency (in such funds as may then be
customary for the settlement of international transactions in such Alternative
Currency) at the Funding and Payment Office.


 


(v)                                 Except as
provided herein, upon satisfaction or waiver of the conditions precedent
specified in Section 3.1 and Section 3.2, the Administrative Agent
shall make the proceeds of such Loans available to the applicable Credit Party
on the applicable Credit Date by causing an amount of same day funds in the
Applicable Currency equal to the proceeds of all such Loans received by the
Administrative Agent from the Lenders to be credited to the account of the
applicable Credit Party at the Funding and Payment Office or such other account
as may be designated in writing to the Administrative Agent by the Credit Parties.


 


2.2                               Issuance of Letters of Credit and Purchase of Participations Therein.


 


A.                                    Letters of Credit. During the Commitment Period, subject to the
terms and conditions hereof, the Issuing Bank agrees to issue Letters of Credit
for the account of the Borrower in the aggregate amount up to but not exceeding
the Letter of Credit Sublimit; provided (i) each Letter of Credit
shall be denominated in Dollars; (ii) the stated amount of each


 


25

















 


Letter of Credit shall not
be less than $5,000,000 or such lesser amount as is acceptable to the Issuing
Bank; (iii) after giving effect to such issuance, in no event shall the
Total Utilization of Commitments exceed the Commitments then in effect;
(iv) after giving effect to such issuance, in no event shall the Letter of
Credit Usage exceed the Letter of Credit Sublimit then in effect; (v) in
no event shall any standby Letter of Credit have an expiration date later than
the earlier of (1) five Business Days prior to the Maturity Date and
(2) the date which is one year from the date of issuance of such standby
Letter of Credit; and (vi) in no event shall any commercial Letter of
Credit (x) have an expiration date later than the earlier of (1) five
Business Days before the Maturity Date and (2) the date which is 180 days
from the date of issuance of such commercial Letter of Credit or (y) be
issued if such commercial Letter of Credit is otherwise unacceptable to the
Issuing Bank in its reasonable discretion. Subject to the foregoing, the
Issuing Bank may agree that a standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each, unless
the Issuing Bank elects not to extend for any such additional period; provided
the Issuing Bank shall not extend any such Letter of Credit if it has received
written notice that an Event of Default has occurred and is continuing at the
time the Issuing Bank must elect to allow such extension; provided  further
in the event a Funding Default exists, the Issuing Bank shall not be required
to issue any Letter of Credit unless the Issuing Bank has entered into
arrangements satisfactory to it and the Borrower to eliminate the Issuing
Bank’s risk with respect to the participation in Letters of Credit of the
Defaulting Lender, including by cash collateralizing such Defaulting Lender’s
Pro Rata Share of the Letter of Credit Usage.


 


B.                                    Notice of Issuance. Each Letter of Credit shall
be issued upon notice, given not later than 11:00 A.M. (New York City time)
on the fifth Business Day prior to the date of the proposed Issuance of such
Letter of Credit (or on such shorter notice as the Issuing Bank may agree), by
the Borrower to the Issuing Bank, and such Issuing Bank shall give the
Administrative Agent, prompt notice thereof. Each such Issuance Notice by the
Borrower shall be by facsimile or telephone, confirmed immediately in writing,
specifying therein the requested (A) date of such Issuance (which shall be
a Business Day), (B) Available Amount of such Letter of Credit,
(C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit. Such Letter of Credit shall be issued pursuant to such application and
agreement for letter of credit as the Issuing Bank and the Borrower shall agree
for use in connection with such requested Letter of Credit (a “Letter of Credit Agreement”). If the
requested form of such Letter of Credit is acceptable to the Issuing Bank in
its reasonable discretion (it being understood that any such form shall have
only explicit documentary conditions to draw and shall not include
discretionary conditions), the Issuing Bank will, unless any Lender gives prior
notice to the Issuing Bank or the Administrative Agent that the applicable
conditions of Section 3.2 would not be satisfied at the time of such
issuance, upon fulfillment of the applicable conditions set forth in
Section 3.2, make such Letter of Credit available to the Borrower at its
office referred to in Section 9.8 or as otherwise agreed with the Borrower
in connection with such Issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.


 


C.                                    Responsibility of the Issuing Bank With Respect to Requests for Drawings
and Payments. In determining whether to honor any drawing under
any Letter of Credit by the beneficiary thereof, the Issuing Bank shall be
responsible only to examine the documents


 


26

















 


delivered under such Letter
of Credit with reasonable care so as to ascertain whether they appear on their
face to be in accordance with the terms and conditions of such Letter of
Credit. As between the Borrower and the Issuing Bank, the Borrower assumes all
risks of the acts and omissions of, or misuse of the Letters of Credit issued
by the Issuing Bank, by the respective beneficiaries of such Letters of Credit.
In furtherance and not in limitation of the foregoing, the Issuing Bank shall
not be responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation
of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by
the beneficiary of any such Letter of Credit of the proceeds of any drawing
under such Letter of Credit; or (viii) any consequences arising from
causes beyond the control of the Issuing Bank, including any Governmental Acts;
none of the above shall affect or impair, or prevent the vesting of, any of the
Issuing Bank’s rights or powers hereunder. Without limiting the foregoing and
in furtherance thereof, any action taken or omitted by the Issuing Bank under
or in connection with the Letters of Credit or any documents and certificates
delivered thereunder, if taken or omitted in good faith, shall not give rise to
any liability on the part of the Issuing Bank to the Borrower. Notwithstanding
anything to the contrary contained in this Section 2.2C, the Borrower
shall retain any and all rights it may have against the Issuing Bank for any
liability arising out of the gross negligence or willful misconduct of the
Issuing Bank.


 


D.                                    Reimbursement by the Borrower of Amounts Drawn or Paid Under Letters of
Credit. In the event the Issuing Bank has determined to
honor a drawing under a Letter of Credit, it shall immediately notify the
Borrower and the Administrative Agent, and the Borrower shall reimburse the
Issuing Bank on or before the Business Day immediately following the date on
which such drawing is honored (the “Reimbursement
Date”) in an amount in Dollars and in same day funds equal to the
amount of such honored drawing; provided, anything contained herein to
the contrary notwithstanding, (i) unless the Borrower shall have notified
the Administrative Agent and the Issuing Bank prior to 10:00 a.m. (New
York City time) on the date such drawing is honored that the Borrower intends
to reimburse the Issuing Bank for the amount of such honored drawing with funds
other than the proceeds of Loans, the Borrower shall be deemed to have given a
timely Notice of Borrowing to the Administrative Agent requesting the Lenders
to make Base Rate Loans on the Reimbursement Date in an amount in Dollars equal
to the amount of such honored drawing, and (ii) subject to satisfaction or
waiver of the applicable conditions specified in Section 3.2, the Lenders
shall, on the Reimbursement Date, make Base Rate Loans in the amount of such
honored drawing, the proceeds of which shall be applied directly by the
Administrative Agent to reimburse the Issuing Bank for the amount of such
honored drawing; and provided  further, if for any reason proceeds
of Loans are not received by the Issuing Bank on the Reimbursement Date in an
amount equal to the amount of such honored


 


27

















 


drawing, the Borrower shall
reimburse the Issuing Bank, on demand, in an amount in same day funds equal to
the excess of the amount of such honored drawing over the aggregate amount of
such Loans, if any, which are so received. Nothing in this Section 2.2D
shall be deemed to relieve any Lender from its obligation to make Loans on the
terms and conditions set forth herein, and the Borrower shall retain any and
all rights it may have against any Lender resulting from the failure of such
Lender to make such Loans under this Section 2.2D.


 


E.                                      Lenders’ Purchase of Participations in Letters of Credit. Immediately
upon the issuance of each Letter of Credit, each Lender having a Commitment
shall be deemed to have purchased, and hereby agrees to irrevocably purchase,
from the Issuing Bank a participation in such Letter of Credit and any drawings
honored thereunder in an amount equal to such Lender’s Pro Rata Share (with
respect to the Commitments) of the maximum amount which is or at any time may
become available to be drawn thereunder. In the event that the Borrower shall
fail for any reason to reimburse the Issuing Bank as provided in
Section 2.2D, the Issuing Bank shall promptly notify each Lender of the
unreimbursed amount of such honored drawing and of such Lender’s respective
participation therein based on such Lender’s Pro Rata Share of the Commitments.
Each Lender shall make available to the Issuing Bank an amount equal to its
respective participation, in Dollars and in same day funds, at the office of the
Issuing Bank specified in such notice, not later than 12:00 p.m. (New York
City time) on the first Business Day (under the laws of the jurisdiction in
which such office of the Issuing Bank is located) after the date notified by
the Issuing Bank. In the event that any Lender fails to make available to the
Issuing Bank on such Business Day the amount of such Lender’s participation in
such Letter of Credit as provided in this Section 2.2E, the Issuing Bank
shall be entitled to recover such amount on demand from such Lender together
with interest thereon for three Business Days at the rate customarily used by
the Issuing Bank for the correction of errors among banks and thereafter at the
Base Rate. Nothing in this Section 2.2E shall be deemed to prejudice the
right of any Lender to recover from the Issuing Bank any amounts made available
by such Lender to the Issuing Bank pursuant to this Section 2.2E in the
event that it is determined that the payment with respect to a Letter of Credit
in respect of which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of the Issuing Bank. In the event
the Issuing Bank shall have been reimbursed by other Lenders pursuant to this
Section 2.2E for all or any portion of any drawing honored by the Issuing
Bank under a Letter of Credit, the Issuing Bank shall distribute to each Lender
which has paid all amounts payable by it under this Section 2.2E with
respect to such honored drawing such Lender’s Pro Rata Share of all payments subsequently
received by the Issuing Bank from the Borrower in reimbursement of such honored
drawing when such payments are received. Any such distribution shall be made to
a Lender at its notice address set forth on the signature pages hereto or
at such other address as such Lender may request.


 


F.                                      Obligations Absolute. The obligation of the
Borrower to reimburse the Issuing Bank for drawings honored under the Letters
of Credit issued by it and to repay any Loans made by Lenders pursuant to
Section 2.2D and the obligations of Lenders under Section 2.2E shall
be unconditional and irrevocable and shall be paid strictly in accordance with
the terms hereof under all circumstances including any of the following
circumstances: (i) any lack of validity or enforceability of any Letter of
Credit; (ii) the existence of any claim, set off, defense or other right
which the Borrower or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting),


 


28

















 


the Issuing Bank, any Lender
or any other Person or, in the case of a Lender, against the Borrower, whether
in connection herewith, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between the Borrower or one
of its Subsidiaries and the beneficiary for which any Letter of Credit was
procured); (iii) any draft or other document presented under any 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;
(iv) payment by the Issuing Bank under any Letter of Credit against
presentation of a draft or other document which does not strictly comply with
the terms of such Letter of Credit; (v) the occurrence of any Material
Adverse Effect; (vi) any breach hereof or any other Loan Document by any
party thereto; (vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or (viii) the fact that an
Event of Default or a Potential Event of Default shall have occurred and be
continuing; provided, in each case, that payment by the Issuing Bank
under the applicable Letter of Credit shall not have constituted gross negligence
or willful misconduct of the Issuing Bank under the circumstances in question.


 


G.                                    Indemnification. Without duplication of any obligation of the
Borrower under Section 9.2 or 9.3, in addition to amounts payable as
provided therein, the Borrower hereby agrees to protect, indemnify, pay and
save harmless the Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and, without duplication, allocated
costs of internal counsel) which the Issuing Bank may incur or be subject to as
a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit by the Issuing Bank, other than as a result of (1) the gross negligence
or willful misconduct of the Issuing Bank or (2) the wrongful dishonor by
the Issuing Bank of a proper demand for payment made under any Letter of Credit
issued by it, or (ii) the failure of the Issuing Bank to honor a drawing
under any such Letter of Credit as a result of any Governmental Act.


 


2.3                               Pro Rata Shares; Availability of Funds; UCP.


 


A.                                    Pro Rata Shares. All Loans shall be made, and all
participations purchased, by the Lenders (or, if applicable, by their
Affiliates) simultaneously and proportionately to their respective Pro Rata
Shares (determined as of the date of such Loans or such purchases, as the case
may be), it being understood that no Lender shall be responsible for any
default by any other Lender in such other Lender’s obligation to make a Loan
requested hereunder or purchase a participation required hereby nor shall any
Commitment of any Lender be increased or decreased as a result of a default by
any other Lender in such other Lender’s obligation to make a Loan requested
hereunder or purchase a participation required hereby. Each Lender acknowledges
and agrees that its participation in each Letter of Credit will be
automatically adjusted to reflect such Lender’s Pro Rata Share of each Letter
of Credit at each time such Lender’s Commitment is increased pursuant to
Section 2.14, reduced pursuant to Section 2.7B, amended pursuant to
an assignment in accordance with Section 9.1 or otherwise changed pursuant
to this Agreement.


 


B.                                    Availability of Funds. Unless the Administrative
Agent shall have been notified by any Lender prior to the applicable Credit
Date that such Lender does not intend to make available to the Administrative
Agent the amount of such Lender’s Loan requested on such Credit Date, the
Administrative Agent may assume that such Lender has made such amount


 


29

















 


available to the
Administrative Agent on such Credit Date and the Administrative Agent may, in
its sole discretion, but shall not be obligated to, make available to the
Borrower a corresponding amount on such Credit Date. If such corresponding
amount is not in fact made available to the Administrative Agent by such Lender
or an Affiliate of such Lender, the Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Credit Date until the date such amount
is paid to the Administrative Agent, at the customary rate set by the
Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent
together with interest thereon, for each day from such Credit Date until the
date such amount is paid to the Administrative Agent, at the rate payable
hereunder for Base Rate Loans. Nothing in this Section 2.3B shall be
deemed to relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that the Borrower may have against any
Lender as a result of any default by such Lender hereunder.


 


C.                                    Uniform Customs and Practice for Documentary Credits. It is hereby
agreed that, except as otherwise specified in any Letter of Credit, each
commercial Letter of Credit shall be subject to the Uniform Customs and
Practice for Documentary Credits and each standby Letter of Credit shall be
subject to the International Standby Practices (ISP 98).


 


2.4                               The Register; Evidence of Debt; Notes.


 


A.                                   Register.


 


(i)                                     The
Administrative Agent shall maintain at its Payment and Funding Office a
register for the recordation of the names and addresses of the Lenders and the
Commitment and Loans of each Lender from time to time (the “Register”). The Register shall be available
for inspection by the Credit Parties or any Lender at any reasonable time and
from time to time upon reasonable prior notice. The Administrative Agent shall
record in the Register the Commitment and the Loans of each Lender, and each
repayment or prepayment in respect of the principal amount of such Loans. Any
such recordation shall be prima facie evidence of the amount owed to such
Lender hereunder; provided that failure to make any such recordation, or
any error in such recordation, shall not affect any Lender’s Commitment or the
Obligations in respect of any Loan. The Credit Parties hereby designate
Citibank to serve as the Credit Parties’ agent solely for purposes of
maintaining the Register as provided in this Section 2.4, and the Credit
Parties hereby agree that, to the extent Citibank serves in such capacity,
Citibank and its officers, directors, employees, agents and affiliates shall
constitute “Indemnitees” hereunder.


 


(ii)                                  The Credit
Parties, the Administrative Agent and the Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any Commitment or Loan shall be effective, in each
case unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent and
recorded in the Register as provided in Section 9.1C. Prior to such
recordation, all amounts owed with respect to the applicable Commitment or Loan
shall be owed


 


30






 












 


to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.


 


B.                                    Lenders’ Evidence of Debt. Each Lender shall maintain
on its internal records an account or accounts evidencing the Obligations of
each Credit Party to such Lender, including the amounts of the Loans made by it
and each repayment and prepayment in respect thereof. Any such recordation
shall be conclusive and binding on the Credit Parties, absent manifest error; provided
that the failure to make any such recordation, or any error in such
recordation, shall not affect any Lender’s Commitments or the Obligations of
the Credit Parties in respect of any applicable Loans; and provided  further,
in the event of any inconsistency between the Register and any Lender’s records,
the recordations in the Register shall govern.


 


C.                                    Notes. If so requested by any Lender by written notice to
any Credit Party (with a copy to the Administrative Agent), such Credit Party
shall execute and deliver to such Lender, promptly after such Credit Party’s
receipt of such notice, a Note or Notes to evidence such Lender’s Loans.


 


2.5                               Interest on the Loans.


 


A.                                   Rate of Interest; Type of Loan.


 


(i)                                     Subject to the
provisions of Sections 2.5E, 2.8 and 2.9, each Loan shall bear interest on the
unpaid principal amount thereof from the date made through the Maturity Date
(whether by acceleration or otherwise) at a rate equal to (a) if a Base
Rate Loan, the Base Rate plus the Applicable Margin or (b) if a
LIBOR Rate Loan, the sum of LIBOR plus the Applicable Margin.


 


(ii)                                  The basis for
determining the rate of interest with respect to any Loan and the Interest
Period with respect to any LIBOR Rate Loan, shall be selected by the applicable
Credit Party and notified to the Administrative Agent and the Lenders pursuant
to the applicable Notice of Borrowing or Conversion/Continuation Notice, as the
case may be. If on any day a Loan is outstanding with respect to which a Notice
of Borrowing or Conversion/Continuation Notice has not been delivered to the
Administrative Agent in accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such
Loan shall be a Base Rate Loan.


 


(iii)                               With respect to
Dollar-Denominated Loans or Alternative Currency Loans denominated in Canadian
Dollars, in the event the Borrower fails to specify Base Rate Loans or LIBOR
Rate Loans in the applicable Notice of Borrowing or Conversion/Continuation
Notice, such Loans (if outstanding as a LIBOR Rate Loans) will be automatically
converted into Base Rate Loans on the last day of the then current Interest
Period for such Loans (or if outstanding as Base Rate Loans will remain as, or
(if not then outstanding) will be made as, Base Rate Loans). As soon as
practicable after 11:00 a.m. (New York City time) on each Interest Rate
Determination Date, the Administrative Agent shall determine (which
determination shall, absent manifest error, be final, conclusive and binding
upon all parties) the interest rate that shall apply


 


31

















 


to the LIBOR Rate Loans for
which an interest rate is then being determined for the applicable Interest
Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to the applicable Credit Party and each Lender.


 


B.                                    Interest Periods. The applicable interest period (each an “Interest Period”) of each Borrowing of
LIBOR Rate Loans shall be a one (1), two (2), three (3) or six
(6) month period, as selected by the applicable Credit Party in the
applicable Notice of Borrowing or Conversion/Continuation Notice, initially
commencing on the date of the Loan or any Conversion/Continuation Date, as the
case may be; provided that


 


(i)                                     in the case of
immediately successive Interest Periods applicable to LIBOR Rate Loans, each
successive Interest Period shall commence on the day on which the immediately
preceding Interest Period expires;


 


(ii)                                  if an Interest
Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day; provided
that, if any Interest Period would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the immediately
preceding Business Day;


 


(iii)                               any Interest
Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall, subject to clause (iv) of this
Section 2.5B, end on the last Business Day of a calendar month;


 


(iv)                              no Interest
Period shall extend beyond the Maturity Date;


 


(v)                                 no more than
ten (10) Interest Periods shall be outstanding at any time; and


 


(vi)                              if the
applicable Credit Party fails to specify an Interest Period for any Borrowing
of LIBOR Rate Loans in the applicable Notice of Borrowing or
Conversion/Continuation Notice, such Credit Party shall be deemed to have
selected an Interest Period of one (1) month.


 


C.                                    Interest Payments. On each Interest Payment Date for a
Borrowing, the applicable Credit Party shall pay an amount equal to the
aggregate amount of interest that has accrued on such Borrowing since the
Effective Date or the last Interest Payment Date for such Borrowing, as
applicable. In addition, interest on each Loan shall be payable upon any
prepayment of such Loan (to the extent accrued on the amount being prepaid) and
at maturity.


 


D.                                    Default Rate. Upon the occurrence and during the continuation of
any Event of Default, (i) the Credit Parties shall no longer have the
option to request LIBOR Rate Loans, (ii) each LIBOR Rate Loan denominated
in Dollars shall convert to a Base Rate Loan at the end of the Interest Period
then in effect for such LIBOR Rate Loan, (iii) upon request of the
Requisite Lenders, the outstanding principal amounts of all LIBOR Rate Loans
shall bear interest (including post-petition interest in any case or proceeding
under the Bankruptcy Code) at a rate per annum equal to two percent (2%) plus
the rate then applicable to LIBOR Rate Loans until the


 


32

















 


end of the applicable
Interest Period and thereafter at a rate equal to two percent (2%) plus the
rate then applicable to Base Rate Loans, and (iv) upon request of the
Requisite Lenders, all outstanding Base Rate Loans and, to the extent permitted
by applicable law, other Obligations arising hereunder or under any other Loan
Document shall bear interest (including post-petition interest in any case or
proceeding under the Bankruptcy Code) at a rate per annum equal to two percent
(2%) plus the rate then applicable to such Base Rate Loans or such other
Obligations arising hereunder or under any other Loan Document. Payment or acceptance
of the increased rates of interest provided for in this Section 2.5D is
not a permitted alternative to timely payment and shall not constitute a waiver
of any Event of Default or otherwise prejudice or limit any rights or remedies
of Agents or Lenders.


 


E.                                      Computation of Interest.


 


(i)                                     Interest
payable pursuant to Section 2.5A shall be computed (i) in the case of
Base Rate Loans on the basis of a 365 day or 366 day year, as the case may be,
and (ii) in the case of LIBOR Rate Loans, on the basis of a 360 day year,
in each case for the actual number of days elapsed in the period during which
it accrues. In computing interest on any Loan, the date of the making of such
Loan or the first day of an Interest Period applicable to such Loan or, with
respect to a Base Rate Loan being converted from a LIBOR Rate Loan, the date of
conversion of such LIBOR Rate Loan to such Base Rate Loan, as the case may be,
shall be included, and the date of payment of such Loan or the expiration date
of an Interest Period applicable to such Loan or, with respect to a Base Rate
Loan being converted to a LIBOR Rate Loan, the date of conversion of such Base
Rate Loan to such LIBOR Rate Loan, as the case may be, shall be excluded; provided,
if a Loan is repaid on the same day on which it is made, one day’s interest
shall be paid on that Loan.


 


(ii)                                  For purposes of
disclosure pursuant to the Interest Act (Canada), R.S. 1985, c I-15, the annual
rates of interest or fees to which the rates of interest or fees provided in
this Agreement and each Note (and stated herein or therein as applicable to be
computed on the basis of a 365-day year or any other period of time less than a
calendar year) are equivalent, and are the rates so determined multiplied by
the actual number of days in the applicable calendar year and divided by 365 or
such other period of time.


 


F.                                      Conversion/Continuation.


 


(i)                                     Subject to
Section 2.9 and so long as no Potential Event of Default or Event of
Default shall have occurred and then be continuing, each Credit Party shall
have the option:


 


(a)                                  to convert at
any time all or any part of any Borrowing of Dollar-Denominated Loans in an
aggregate amount of $5,000,000 or a higher integral multiple of $1,000,000 from
one Type of Loan to another Type of Loan; provided if any LIBOR Rate
Loan is converted on a day other than the last day of an Interest Period
therefor, the applicable Credit Party shall pay all amounts due under
Section 2.8 in connection with such conversion; or


 


(b)                                 upon the
expiration of any Interest Period applicable to any Borrowing LIBOR Rate Loans,
to continue all or any portion of such Loans in a minimum


 


33

















 


amount of $5,000,000 or a
higher integral multiple of 1,000,000 units of the Applicable Currency as LIBOR
Rate Loans.


 


(ii)                                  The applicable
Credit Party shall deliver a Conversion/Continuation Notice to the
Administrative Agent no later than 11:00 a.m. (New York City time) at
least one Business Day in advance of the proposed conversion date (in the case
of a conversion to Base Rate Loans) and at least three Business Days in advance
of the proposed Conversion/Continuation Date (in the case of a conversion to,
or a continuation of, LIBOR Rate Loans). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, LIBOR
Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and the applicable Credit
Party shall be bound to effect a conversion or continuation in accordance
therewith.


 


G.                                    Letter of Credit Drawings. The Borrower agrees to pay
to the Issuing Bank, with respect to drawings honored under any Letter of
Credit, interest on the amount paid by the Issuing Bank in respect of each such
honored drawing from the date such drawing is honored to but excluding the date
such amount is reimbursed by or on behalf of the Borrower at a rate equal to
(i) for the period from the date such drawing is honored to, but
excluding, the applicable Reimbursement Date, the Base Rate plus the Applicable
Margin, and (ii) thereafter, the Base Rate plus the Applicable Margin plus
2%.


 


H.                                    Computation of Interest on Reimbursement Obligations. Interest
payable pursuant to Section 2.5G shall be computed on the basis of a 365/366
day year for the actual number of days elapsed in the period during which it
accrues, and shall be payable on demand or, if no demand is made, on the date
on which the related drawing under a Letter of Credit is reimbursed in full.
Promptly upon receipt by the Issuing Bank of any payment of interest pursuant
to Section 2.5G, the Issuing Bank shall distribute to each Lender, out of
the interest received by the Issuing Bank in respect of the period from the
date such drawing is honored to, but excluding, the date on which the Issuing
Bank is reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of any Loans), the amount that such Lender
would have been entitled to receive in respect of the letter of credit fee that
would have been payable in respect of such Letter of Credit for such period if
no drawing had been honored under such Letter of Credit. In the event the
Issuing Bank shall have been reimbursed by the Lenders for all or any portion
of such honored drawing, the Issuing Bank shall distribute to each Lender which
has paid all amounts payable by it under Section 2.2E with respect to such
honored drawing such Lender’s Pro Rata Share of any interest received by the
Issuing Bank in respect of that portion of such honored drawing so reimbursed
by the Lenders for the period from the date on which the Issuing Bank was so
reimbursed by the Lenders to but excluding the date on which such portion of
such honored drawing is reimbursed by the Borrower.


 


I.                                         Additional Interest on LIBOR Rate Loans. Each Credit Party shall pay
to each Lender, so long as and to the extent such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including “Eurocurrency liabilities” (as such term is defined in Regulation D),
additional interest on the unpaid principal amount of each LIBOR Rate Loan of
such Lender, from the date of such Loan until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (a) the LIBOR rate for the


 


34

















 


applicable Interest Period
for such Loan from (b) the rate obtained by dividing such LIBOR rate by a
percentage equal to 100% minus the Applicable Reserve Requirement (expressed as
a percentage) of such Lender for such Interest Period, payable on each date on
which interest is payable on such Loan. Such Lender shall as soon as practicable
provide notice to the Administrative Agent and the Borrower of any such
additional interest arising in connection with such Loan, which notice shall be
conclusive and binding, absent demonstrable error.


 


2.6                               Fees.


 


All fees referred to in this
Section 2.6 shall be paid to the Administrative Agent at its Funding and
Payment Office and upon receipt, the Administrative Agent shall promptly
distribute to each Lender its Pro Rata Share thereof.


 


(i)                                     The Borrower
agrees to pay to each Lender having Credit Exposure the fees listed below.


 


(a)                                  Facility Fee: From the
Effective Date until the Maturity Date, the Borrower shall pay a facility fee
(the “Facility Fee”) to each
Lender (other than a Defaulting Lender for such time as such Lender is a
Defaulting Lender solely in respect of its unused Commitment), ratably in
accordance with such Lender’s then current Commitment, determined by reference
to the pricing grid set forth in the definition of Applicable Margin. The
Facility Fee shall be paid quarterly in arrears and on the Maturity Date;


 


(b)                                 Letter of
Credit Fee: From the Effective Date until the Maturity Date,
the Borrower shall pay letter of credit fees to each Lender (other than a
Defaulting Lender for such time as such Lender is a Defaulting Lender, but
subject to Section 2.11B(iv)), ratably in accordance with its then current
Commitment, equal to (1) the Applicable Margin for LIBOR Rate Loans, times
(2) the average aggregate daily maximum amount available to be drawn under
all Letters of Credit (regardless of whether any conditions for drawing could
then be met and determined as of the close of business on any date of
determination).


 


(ii)                                  The Borrower
agrees to pay directly to the Issuing Bank, for its own account, the following
fees:


 


(a)                                  a fronting fee
equal to 0.25% per annum (or such other rate as may be agreed to by the
Borrower and the Issuing Bank), times the average aggregate daily maximum
amount available to be drawn under all Letters of Credit (determined as of the
close of business on any date of determination); and


 


(b)                                 such
documentary and processing charges for any issuance, amendment, transfer or
payment of a Letter of Credit as are in accordance with the Issuing Bank’s
standard schedule for such charges and as in effect at the time of such
issuance, amendment, transfer or payment, as the case may be.


 


(iii)                               All fees
referred to in Section 2.6(i) and 2.6(ii)(a) shall be calculated
on the basis of a 360 day year and the actual number of days elapsed and shall
be payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year during the


 


35

















 


Commitment Period,
commencing on the first such date to occur after the Effective Date, and on the
Maturity Date.


 


(iv)                              In addition to
any of the foregoing fees, the Borrower agrees to pay to the Lead Arrangers and
the Agents such other fees in the amounts and at the times separately agreed
upon in the Fee Letter.


 


2.7                               Provisions Regarding Payments.


 


A.                                   Voluntary Prepayments.


 


(i)                                    Any time and
from time to time:


 


(a)                                  the Borrower
may prepay any Base Rate Loans on any Business Day in whole or in part, in an
aggregate principal amount of $5,000,000 or a higher integral multiple of
$1,000,000; provided, that if Loans are made pursuant to
Section 2.2D, then during the thirty (30) days after the making of such
Loans, the Borrower may make one prepayment of Base Rate Loans in any amount so
long as after giving effect thereto, the aggregate principal amount of all Base
Rate Loans is an integral multiple of $1,000,000; and


 


(b)                                 the Borrower
may prepay any Borrowing of LIBOR Rate Loans on any Business Day in whole or in
part in an aggregate principal Dollar Amount of $5,000,000 or a higher integral
multiple of 1,000,000 units of the Applicable Currency.


 


(ii)                                  All prepayments
shall be made upon prior written or telephonic notice received by the
Administrative Agent not later than 11:00 a.m. (New York City time):


 


(a)                                  In the case of
Base Rate Loans, on the date of such prepayment; and


 


(b)                                 In the case of
LIBOR Rate Loans, two (2) Business Days’ prior to the date of such
prepayment;


 


and, if such notice is given
by telephone, such notice shall be promptly confirmed in writing to the
Administrative Agent (and the Administrative Agent will promptly transmit such
telephonic or original notice for the Loans by facsimile or telephone to each
Lender). Upon the giving of any such notice, the principal amount of the Loans
specified in such notice shall become due and payable on the prepayment date
specified therein.


 


B.                                    Voluntary Commitment Reductions.


 


(i)                                     The Credit
Parties may, upon not less than three (3) Business Days’ prior written or
telephonic notice confirmed in writing to the Administrative Agent (which
original written or telephonic notice the Administrative Agent will promptly
transmit by facsimile or telephone to each applicable Lender), at any time and
from time to time terminate in whole or permanently reduce in part, without
premium or penalty, the Commitments in an amount up to the amount by which the
Commitments exceed the Total Utilization of Commitments at the time


 


36

















 


of such proposed termination
or reduction; provided any such partial reduction of the Commitments
shall be in the amount of $5,000,000 or a higher integral multiple of
$1,000,000.


 


(ii)                                  The Credit
Parties’ notice to the Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Commitments shall
be effective on the date specified in the Borrower’s notice and shall reduce
the Commitment of each Lender proportionately to its Pro Rata Share thereof.


 


C.                                    Mandatory Prepayments. Subject to Section 2.10B,
the Credit Parties shall from time to time prepay the Loans to the extent
necessary so that the Total Utilization of Commitments shall not at any time
exceed the Commitments then in effect.


 


D.                                    Application of Prepayments/Reductions. Unless otherwise specified
by the applicable Credit Party in a notice of prepayment,


 


(a) any amount to be
applied pursuant to Section 2.7A or C shall be applied as follows:


 


first, to prepay
outstanding reimbursement obligations with respect to Letters of Credit;


 


second, to prepay
Loans to the full extent thereof; and


 


third, to cash
collateralize Letters of Credit; and


 


(b) considering each
Type of Loan being prepaid separately, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before application to LIBOR
Rate Loans, in each case in a manner which minimizes the amount of any payments
required to be made by the Credit Parties pursuant to Section 2.9C.


 


E.                                      General Provisions Regarding Payments.


 


(i)                                     Manner and Time
of Payment. All payments by the Credit Parties of principal,
interest, fees and other Obligations shall be made in Dollars or, with respect
to Alternative Currency Loans, in the relevant Alternative Currency in same day
funds, without defense, set-off or counterclaim, free of any restriction or
condition, and delivered to the Administrative Agent not later than
12:00 p.m. (New York City time) on the date due at the Funding and Payment
Office for the account of the Lenders; funds received by the Administrative
Agent after that time on such due date shall be deemed to have been paid by the
applicable Credit Party on the next succeeding Business Day.


 


(ii)                                  Payments on
Business Days. Subject to the provisions of Section 2.5B
with respect to Interest Periods, whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in the computation of the payment of interest hereunder.


 


37

















 


(iii)                               Application of
Payments to Principal and Interest. All payments in respect of
the principal amount of the Loans shall include payment of accrued interest on
the principal amount being repaid or prepaid, and all such payments shall be
applied to the payment of interest before application to principal.


 


(iv)                              Distribution to
Lenders. The Administrative Agent shall promptly distribute to each Lender at
such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due
hereunder, together with all other amounts due thereto, including all fees
payable with respect thereto, to the extent received by Administrative Agent.


 


(v)                                 Withdrawal of
Notice. Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
LIBOR Rate Loans, the Administrative Agent shall give effect thereto in
apportioning payments received thereafter.


 


(vi)                              Authorization
to Charge Accounts. Each Credit Party hereby authorizes the
Administrative Agent to charge such Credit Party’s accounts with the Administrative
Agent in order to cause timely payment to be made to the Administrative Agent
of all principal, interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that purpose).


 


(vii)                           Non-Conforming
Payments. The Administrative Agent shall deem any payment by
or on behalf of any Credit Party hereunder that is not made in same day funds
prior to 12:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by the
Administrative Agent until the later of (i) the time such funds become
available funds, and (ii) the applicable next Business Day. The
Administrative Agent shall give prompt telephonic notice to the applicable
Credit Party and each applicable Lender (confirmed in writing) if any payment
is non-conforming. Any non-conforming payment may constitute or become a
Potential Event of Default or Event of Default in accordance with the terms of
Section 8.1. Interest shall continue to accrue on any principal as to
which a non-conforming payment is made until such funds become available funds
(but in no event less than the period from the date of such payment to the next
succeeding applicable Business Day) at the rate determined pursuant to
Section 2.5D from the date such amount was due and payable until the date
such amount is paid in full.


 


2.8                               Increased Costs; Taxes.


 


A.                                    Compensation for Increased Costs and Taxes. Subject to the
provisions of Section 2.8B (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
Governmental Authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or


 


38

















 


directive issued or made
after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law):


 


(i)                                     subjects such
Lender (or its applicable lending office) to any additional Tax (other than any
Tax on the overall net income of such Lender) with respect to this Agreement or
any of the other Loan Documents or any of its obligations hereunder or
thereunder or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder;


 


(ii)                                  imposes,
modifies or holds applicable any reserve (including any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan,
Federal Deposit Insurance Corporation insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of, or
advances or loans by, or other credit extended by, or any other acquisition of
funds by, any office of such Lender (other than any such reserve or other
requirements with respect to LIBOR Rate Loans that are reflected in the
definition of LIBOR); or


 


(iii)                               imposes any
other condition (other than with respect to a Tax matter) on or affecting such
Lender (or its applicable lending office) or its obligations hereunder or the
London interbank market;


 


and the result of any of the
foregoing is to increase the cost to such Lender of agreeing to make, making or
maintaining Loans hereunder or to reduce any amount received or receivable by
such Lender (or its applicable lending office) with respect thereto; then, in
any such case, the Credit Parties shall promptly pay to such Lender, upon
receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to compensate such Lender for any such increased
cost or reduction in amounts received or receivable hereunder. Such Lender
shall deliver to the Credit Parties (with a copy to the Administrative Agent) a
written statement, setting forth in reasonable detail the basis for, and a
calculation in reasonable detail of, the additional amounts owed to such Lender
under this Section 2.8A, which statement shall be conclusive and binding
upon all parties hereto absent manifest error.


 


B.                                    Withholding of Taxes.


 


(i)                                     Payments to Be
Free and Clear. All sums payable by any Credit Party under this
Agreement and the other Loan Documents shall (except to the extent required by
law) be paid free and clear of, and without any deduction or withholding on
account of, any Tax (other than a Tax on the overall net income of any Lender)
imposed, levied, collected, withheld or assessed by or within the United States
of America or any political subdivision in or of the United States of America
or any other jurisdiction from or to which a payment is made by or on behalf of
any Credit Party or by any federation or organization of which the United
States of America or any such jurisdiction is a member at the time of payment.


 


(ii)                                  Grossing-up of
Payments. If any Credit Party or any other Person is
required by law to make any deduction or withholding on account of any such Tax
from any sum


 


39

















 


paid or payable by such
Credit Party to the Administrative Agent or any Lender under any of the Loan
Documents:


 


(a)                                  such Credit
Party shall notify the Administrative Agent of any such requirement or any
change in any such requirement as soon as such Credit Party becomes aware of
it;


 


(b)                                 such Credit
Party shall pay any such Tax before the date on which penalties attach thereto,
such payment to be made (if the liability to pay is imposed on such Credit
Party) for its own account or (if that liability is imposed on the
Administrative Agent or such Lender, as the case may be) on behalf of and in
the name of the Administrative Agent or such Lender;


 


(c)                                  the sum payable
by such Credit Party in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment, the Administrative
Agent or such Lender, as the case may be, receives on the due date and retains
a net sum equal to what it would have received and retained had no such
deduction, withholding or payment been required or made; and


 


(d)                                 within thirty
(30) days after paying any sum from which it is required by law to make any
deduction or withholding, and within thirty (30) days after the due date of
payment of any Tax which it is required by clause (b) above to pay, such
Credit Party shall deliver to the Administrative Agent evidence reasonably
satisfactory to the other affected parties of such deduction, withholding or
payment and of the remittance thereof to the relevant taxing or other authority.


 


(iii)                               Evidence of
Exemption from U.S. Withholding Tax.


 


(a)                                  Each Lender
that is not a United States Person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income
tax purposes (a “Non-US Lender”)
shall deliver to the Administrative Agent for transmission to the Credit
Parties, on or prior to the Effective Date (in the case of each Lender listed
on the signature pages hereof on the Effective Date) or on or prior to the
date of the Assumption Agreement or Assignment Agreement, as applicable,
pursuant to which it becomes a Lender (in the case of each other Lender), and
at such other times as may be necessary in the determination of the Credit
Parties or Administrative Agent (each in the reasonable exercise of its discretion),
(x) two original copies of Internal Revenue Service Form W-8BEN or
W-8ECI (or any successor forms), properly completed and duly executed by such
Lender, and such other documentation required under the Internal Revenue Code
or reasonably requested by the Credit Parties to establish that such Lender is
not subject to deduction or withholding of United States federal income tax
with respect to any payments to such Lender of principal, interest, fees or
other amounts payable under any of the Loan Documents.


 


(b)                                 Each Lender
required to deliver any forms, certificates or other evidence with respect to
United States federal income tax withholding matters pursuant to
Section 2.8B(iii)(a) hereby agrees, from time to time after the
initial delivery by such Lender of


 


40
















 


such forms, certificates or
other evidence, whenever a lapse in time or change in circumstances renders
such forms, certificates or other evidence obsolete or inaccurate in any
material respect, that such Lender shall promptly (1) deliver to Administrative
Agent for transmission to the Borrower two new original copies of Internal
Revenue Service Form W-8BEN or W-8ECI, or a Certificate re Non-Bank Status
and two (2) original copies of Internal Revenue Service Form W-8BEN
(or any successor form), as the case may be, properly completed and duly
executed by such Lender, and such other documentation required under the
Internal Revenue Code and reasonably requested by the Credit Parties to confirm
or establish that such Lender is not subject to deduction or withholding of
United States federal income tax with respect to payments to such Lender under
the Loan Documents or (2) notify Administrative Agent and the Borrower of
its inability to deliver any such forms, certificates or other evidence.


 


(c)                                  The Credit Parties
shall not be required to pay any additional amount to any Non-US Lender under
clause (c) of Section 2.8B(ii) if such Lender shall have failed to
satisfy the requirements of clause (a) or (b)(1) of this Section 2.8B(iii);
provided that if such Lender shall have satisfied the requirements of
Section 2.8B(iii)(a) on the Effective Date or on the date of the
Assumption Agreement or Assignment Agreement, as applicable, pursuant to which
it became a Lender, as applicable, nothing in this Section 2.8B(iii)(c) shall
relieve the Credit Parties of its obligation to pay any additional amounts
pursuant to clause (c) of Section 2.8B(ii) in the event that, as
a result of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described herein.


 


(iv)                              If a payment is
made by a Credit Party under the foregoing provisions of this
Section 2.8(B) for the account of any Lender and such Lender, in its
sole opinion, determines that it has irrevocably received or been granted a
credit against, or relief or remission from, or repayment or refund of, any tax
paid or payable by it in respect of or calculated with reference to the
deduction or withholding giving rise to such additional payment, such Lender
shall, to the extent that it determines that it can do so without prejudice to
the retention of the amount of such credit, relief, remission or repayment, pay
to such Credit Party such amount as such Lender shall, in its sole opinion,
have determined is attributable to such deduction or withholding and will leave
such Lender (after such payment) in no worse position than it would have been
had such Credit Party not been required to make such deduction or withholding.
Nothing contained herein shall (i) interfere with the right of a Lender to
arrange its tax affairs in whatever manner it thinks fit, (ii) oblige any
Lender to disclose any information relating to its tax affairs or any
computations in respect thereof or (iii) require any Lender to take or
refrain from taking any action that would prejudice its ability to benefit from
any other credit, relief, remission, repayment or refund to which it may be
entitled.


 


(v)                                 Evidence of
Exemption from Applicable Withholding Tax. Any Lender that is
entitled to an exemption from or reduction of withholding tax imposed by the
jurisdiction in which a Subsidiary Borrower is organized (the “Relevant
Jurisdiction”) with respect to payments under this Agreement shall deliver to
the relevant Subsidiary Borrower (with a copy to the Administrative Agent)
within 15 Business Days following receipt of the written notice referred to
below, such properly completed and executed documentation as is reasonably


 


41

















 


requested by such Subsidiary
Borrower or the Administrative Agent in order to permit such payments to be
made with the benefit of such exemption or reduction (and shall make
application to the relevant Governmental Authority for exemption or reduced
rates if it is the party required by law to do so), provided that such Lender
has received written notice from such Subsidiary Borrower or the Administrative
Agent identifying the requirements for such exemption or reduction, supplying
all applicable documentation and specifying the time period within which
documentation is to be provided under this Section 2.8B(v) (or such
application is to be made). Without limiting the Lenders’ obligations under the
preceding sentence, each Lender agrees that it will, without material cost or
other material disadvantage (as determined in such Lender’s good faith
judgment), cooperate with such Subsidiary Borrower to minimize the applicable
withholding tax burdens in the Relevant Jurisdiction. If any Lender becomes
subject to any Tax because it fails to comply with this Section 2.8B(v),
each Subsidiary Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Tax. The Administrative Agent
agrees that it will provide administrative and ministerial assistance to each
relevant Subsidiary Borrower with respect to any payments made by such
Subsidiary Borrower to the Lenders, and the calculation, reporting, withholding
and remitting of any Taxes imposed by Canada or Ireland to the appropriate
Governmental Authority. Notwithstanding the foregoing, (a) the Subsidiary
Borrowers shall retain primary responsibility for ascertaining the requirements
of Applicable Law and providing to the Lenders the written notice described in
the first sentence of this Section 2.8B(v), and (b) no failure by the
Administrative Agent to meet any obligations under this
Section 2.8B(v) shall operate to excuse any Subsidiary Borrower from
its obligations to the Lenders under this Section 2.8B(v).


 


C.                                    Capital Adequacy Adjustment. In the event that any Lender
shall have determined that the adoption, effectiveness, phase-in or
applicability after the Effective Date of any law, rule or regulation (or
any provision thereof) regarding capital adequacy, or any change therein after
the Effective Date or in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender (or its
applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency issued after the
Effective Date, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender’s Loans or Commitment, or
participations therein or other obligations hereunder with respect to the Loans
to a level below that which such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in, applicability,
change or compliance (taking into consideration the policies of such Lender or
such controlling corporation with regard to capital adequacy), then from time
to time, the Credit Parties shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction. Such Lender shall deliver to the Credit
Parties (with a copy to the Administrative Agent) a written statement, setting
forth in reasonable detail the basis for, and calculation in reasonable detail
of, the additional amounts owed to the Lender under this Section 2.8C,
which statement shall be conclusive and binding upon all parties hereto absent
manifest error.


 


42

















 


2.9                               Special
Provisions Governing LIBOR Rate Loans.


 


Notwithstanding any other
provision of this Agreement to the contrary, the following provisions shall
govern with respect to LIBOR Rate Loans as to the matters covered:


 


A.                                    Inability to Determine Applicable Interest Rate. In the event
that the Administrative Agent shall have determined (which determination shall
be final and conclusive and binding upon all parties hereto), on any Interest
Rate Determination Date with respect to any Borrowing of LIBOR Rate Loans, that
by reason of circumstances affecting the interbank LIBOR market adequate and
fair means do not exist for ascertaining the interest rate applicable to such
Loans on the basis provided for in the definition of LIBOR Rate, the
Administrative Agent shall on such date give notice (by facsimile or by
telephone confirmed in writing) to the Credit Parties and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to,
LIBOR Rate Loans until such time as the Administrative Agent notifies the
Credit Parties and the Lenders that the circumstances giving rise to such
notice no longer exist, and (ii) any Notice of Borrowing or Conversion/Continuation
Notice given by any Credit Party with respect to the Loans in respect of which
such determination was made shall be deemed to be rescinded by such Credit
Party.


 


B.                                    Illegality or Impracticability of LIBOR Rate Loans. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Credit Parties and the Administrative Agent) that the
making, maintaining or continuation of its LIBOR Rate Loans in Dollars or any
Alternative Currency (i) has become unlawful as a result of compliance by
such Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule,
regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful) or (ii) has become
impracticable, or would cause such Lender material hardship, as a result of
contingencies occurring after the date of this Agreement which materially and
adversely affect the interbank LIBOR market or the position of such Lender in
that market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day
give notice (by facsimile or by telephone confirmed in writing) to the Credit
Parties and the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) (i) if such LIBOR Rate Loan is denominated in Dollars, it shall
be Converted into a Base Rate Loan and (ii) if such LIBOR Rate Loan is
denominated in any Alternative Currency, it shall be exchanged into an
Equivalent amount of Dollars and be Converted into a Base Rate Loan and
(b) the obligation of the Lenders to make LIBOR Rate Loans in the affected
currency or to Convert Loans into LIBOR Rate Loans shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.


 


C.                                    Compensation For Breakage. The Credit Parties shall
compensate each Lender upon written request by such Lender (which request shall
set forth the basis for requesting such amounts and a calculation thereof in
reasonable detail) for all reasonable losses, expenses and liabilities
(including any interest paid by such Lender to lenders of funds borrowed by it
to make or carry its LIBOR Rate Loans and any loss, expense or liability
sustained by such Lender in connection with the liquidation or re-employment of
such funds, but excluding lost profits)


 


43

















 


which that Lender may
sustain: (i) if for any reason (other than a default by such Lender) a
LIBOR Rate Loan is not made on a date specified therefor in a Notice of
Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any LIBOR Rate Loan does not occur on a date specified therefor
in a Conversion/Continuation Notice or a telephonic request for conversion or
continuation, (ii) if any prepayment or other principal payment of, or any
conversion of, any of its LIBOR Rate Loans occurs on a date other than the last
day of an Interest Period applicable to such LIBOR Rate Loan or (iii) if
any prepayment of any LIBOR Rate Loan made by such Lender is not made on any
date specified in a notice of prepayment given by the Borrower.


 


D.                                    Booking of LIBOR Rate Loans. Any Lender may make, carry
or transfer LIBOR Rate Loans at, to, or for the account of any of its branch offices
or the office of an Affiliate of that Lender.


 


E.                                      Assumptions Concerning Funding of LIBOR Rate Loans. Calculation of
all amounts payable to a Lender under this Section 2.9 and under
Section 2.8A shall be made as though that Lender had actually funded each
of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit
bearing interest at the rate obtained pursuant to the definition of LIBOR in an
amount equal to the amount of such LIBOR Rate Loan and having a maturity
comparable to the relevant Interest Period and through the transfer of such
LIBOR deposit from an offshore office of that Lender to a domestic office of
that Lender in the United States of America; provided, however, that each
Lender may fund each of its LIBOR Rate Loans in any manner it sees fit and the
foregoing assumptions shall be utilized only for the purposes of calculating
amounts payable under this Section 2.9 and under Section 2.8A and
2.8C.


 


2.10                        Matters Relating to Currency Exchange Rates and Conversion of Amounts to Alternative
Currencies.


 


A.                                    Spot Rate Calculation. The Administrative Agent
shall determine the Dollar Amount of each Alternative Currency Loan as of
(x) the first day of each Interest Period applicable thereto and
(y) the last Business Day of each calendar month, and such calculation
shall remain in effect for purposes of this Agreement until the next date on
which an event described in this Section 2.10A occurs and a recalculation
is made. The Administrative Agent shall promptly notify the applicable Credit
Party and the Lenders of each Dollar Amount so determined by it. Each such
determination shall be based on the Spot Rate (x) on the date of the
related Notice of Borrowing for purposes of the initial such determination for
any Alternative Currency Loan and (y) on the fourth Business Day prior to
the date as of which such Dollar Amount is to be determined, for purposes of
any subsequent determination.


 


B.                                    Prepayment. If after giving effect to any such determination of
a Dollar Amount, the Total Utilization of Commitments exceeds 105% of the
Commitments or the aggregate Dollar Amount of Alternative Currency Loans
exceeds 105% of the Alternative Currency Sublimit, the Credit Parties shall,
within five Business Days of receipt of notice thereof from the Administrative
Agent setting forth such calculation in reasonable detail, prepay outstanding
Loans (as selected by the Credit Parties and notified to the Lenders through
the Administrative Agent not less than three Business Days prior to the date of
prepayment) or take other action (including, in the Credit Parties’ discretion,
Dollar cash collateralization of Letters


 


44

















 


of Credit pursuant to
documentation reasonably satisfactory to the Administrative Agent in amounts
from time to time equal to such excess) to the extent necessary to eliminate
any such excess.


 


C.                                    Conversion of Amounts to Applicable Currencies. To the extent
funds received by the Administrative Agent (or debited from any Person’s
account with the Administrative Agent) must be converted into Dollars or an
Alternative Currency for any payment required hereunder, the Administrative
Agent shall effect such conversion on the applicable payment date on the basis
of the Spot Rate then in effect.


 


2.11                        Defaulting Lenders.


 


A.                                    Anything contained herein to
the contrary notwithstanding, in the event that any Lender defaults (a “Defaulting Lender”) in its obligation to
fund (a “Funding Default”) any
Loan or its portion of any unreimbursed payment under Section 2.2D (in
each case, a “Defaulted Loan”)
within three Business Days of the date required to be funded, then (a) to
the extent permitted by Applicable Law, until such time as the Default Excess
with respect to such Defaulting Lender shall have been reduced to zero,
(i) any voluntary prepayment of the Loans shall, if the applicable Credit
Party so directs at the time of making such voluntary prepayment, be applied to
the Loans of other Lenders as if such Defaulting Lender had no Loans
outstanding and the Credit Exposure of such Defaulting Lender were zero, and
(ii) any mandatory prepayment of the Loans shall, if the applicable Credit
Party so directs at the time of making such mandatory prepayment, be applied to
the Loans of other Lenders (but not to the Loans of such Defaulting Lender) as
if such Defaulting Lender had funded all Defaulted Loans of such Defaulting
Lender; and (b) the Total Utilization of Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all Defaulted
Loans of such Defaulting Lender.


 


B.                                    If any Letters of Credit are
outstanding at the time a Lender becomes a Potential Defaulting Lender, then:


 


(i)                                     all or any part
of the Available Amount of outstanding Letters of Credit shall be reallocated
among the Lenders that are not Potential Defaulting Lenders (“non-Defaulting Lenders”) in accordance with
their respective Pro Rata Shares (disregarding any Potential Defaulting
Lender’s Commitment) but only to the extent that (x) the sum of
(A) the aggregate principal amount of all Loans made by such
non-Defaulting Lenders (in their capacity as Lenders) and outstanding at such
time, plus (B) such non-Defaulting Lenders’ Pro Rata Shares (before giving
effect to the reallocation contemplated herein) of the Available Amount of all
outstanding Letters of Credit, plus (C) the aggregate principal amount of
all Loans made by each Issuing Bank pursuant to Section 2.2E that have not
been ratably funded by such non-Defaulting Lenders and outstanding at such time,
plus (D) such Defaulting Lender’s Pro Rata Share of the Available Amount
of such Letters of Credit, does not exceed the total of all non-Defaulting
Lenders’ Commitments and (y) the conditions set forth in Section 3.2C
and 3.2D are satisfied at such time;


 


(ii)                                  if the
reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within one Business Day following notice by the


 


45

















 


Administrative Agent, cash
collateralize such Defaulting Lender’s Pro Rata Share of the Available Amount
of such Letters of Credit (after giving effect to any partial reallocation
pursuant to clause (i) above) by paying cash collateral to the Issuing
Bank for so long as such Letters of Credit are outstanding;


 


(iii)                               if the Pro Rata
Shares of Letters of Credit of the non-Defaulting Lenders is reallocated
pursuant to this Section 2.11B, then the fees payable to the Lenders
pursuant to Section 2.6(i)(b) shall be adjusted in accordance with
such non-Defaulting Lenders’ Pro Rata Shares of Letters of Credit; or


 


(iv)                              if any
Defaulting Lender’s Pro Rata Share of Letters of Credit is neither cash
collateralized nor reallocated pursuant to Section 2.11B, then, without
prejudice to any rights or remedies of the Issuing Bank or any Lender
hereunder, all letter of credit fees payable under
Section 2.6(i)(b) with respect to such Defaulting Lender’s Pro Rata
Share of Letters of Credit shall be payable to the Issuing Bank until such
Lender’s Pro Rata Share of Letters of Credit is cash collateralized and/or
reallocated; and


 


C.                                    So long as any Lender is a
Potential Defaulting Lender, the Issuing Bank shall not be required to issue,
amend or increase any Letter of Credit, unless it is satisfied that the related
exposure will be 100% covered by the Commitments of the non-Defaulting Lenders
and/or cash collateral will be provided by the Borrower in accordance with
Section 2.11B, and participating interests in any such newly issued or
increased Letter of Credit shall be allocated among non-Defaulting Lenders in a
manner consistent with Section 2.11B(i) (and Potential Defaulting
Lenders shall not participate therein).


 


D.                                    No Commitment of any Lender
shall be increased or otherwise affected, and, except as otherwise expressly provided
in this Section 2.11, performance by the Credit Parties of their
Obligations shall not be excused or otherwise modified as a result of any
Funding Default or the operation of this Section 2.11.
The rights and remedies against a Defaulting Lender under this
Section 2.11 are in addition to other rights and remedies which the Credit
Parties may have against such Defaulting Lender with respect to any Funding
Default and which the Administrative Agent or any Lender may have against such
Defaulting Lender with respect to any Funding Default.


 


2.12                        Removal or
Replacement of a Lender.


 


Anything contained herein to
the contrary notwithstanding, in the event that any Lender shall give notice to
the Credit Parties that such Lender is an Affected Lender or that such Lender
is entitled to receive payments under Section 2.8 or 2.9, if the
circumstances which have caused such Lender to be an Affected Lender or which
entitle such Lender to receive such payments shall remain in effect, and such
Lender shall fail to withdraw such notice within five (5) Business Days
after receipt by such Lender of a written request for such withdrawal from a
Credit Party, or such Lender is a Potential Defaulting Lender, then, with
respect to each such Lender (the “Terminated
Lender”), the Credit Parties may, by giving written notice to the
Administrative Agent and any Terminated Lender of its election to do so, elect
to cause such Terminated Lender (and such Terminated Lender hereby irrevocably
agrees) to assign its Commitment and outstanding Loans in full to one or more
Eligible Assignees (each a “Replacement
Lender”) in


 


46

















 


accordance with the
provisions of Section 9.1 for a purchase price equal to the outstanding
principal amount of the Loans assigned and accrued interest thereon and accrued
and theretofore unpaid fees owing to such Terminated Lender under
Section 2.6 through the date of assignment, to be paid by the Replacement
Lender; provided that concurrently with such assignment, the Credit
Parties shall pay any amounts payable to such Terminated Lender to the date of
such assignment pursuant to Sections 2.8 or 2.9 or otherwise as if it were a
prepayment. Upon the completion of such assignment and the prepayment without
giving effect to Section 2.11A of all amounts owing to any Terminated
Lender, such Terminated Lender shall no longer constitute a “Lender” for
purposes hereof; provided that any rights of such Terminated Lender to
indemnification hereunder shall survive as to such Terminated Lender.


 


2.13                        Mitigation.


 


A.                                    Each Lender agrees that, as
promptly as practicable after the officer of such Lender responsible for
administering the Loans of such Lender becomes aware of the occurrence of an
event or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to receive payments under
Section 2.8 or 2.9, it will, to the extent not inconsistent with the
internal policies of such Lender and any applicable legal or regulatory restrictions,
use reasonable efforts (i) to make, issue, fund or maintain the Commitment
of such Lender or the affected Loans of such Lender through another lending
office of such Lender, or (ii) take such other measures as such Lender may
deem reasonable, if as a result thereof the circumstances which would cause
such Lender to be an Affected Lender would cease to exist or the additional
amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.8 or 2.9 would be materially reduced and if, as determined by
such Lender in its sole discretion, the making, issuing, funding or maintaining
of such Commitment or Loans through such other lending office or in accordance
with such other measures, as the case may be, would not otherwise adversely
affect such Commitment or Loans or the interests of such Lender; provided
that such Lender will not be obligated to utilize such other lending office
pursuant to this Section 2.13 unless the Credit Parties agree to pay all
incremental expenses incurred by such Lender as a result of utilizing such
other lending office as described in clause (i) above. A certificate as to
the amount of any such expenses payable by the Credit Parties pursuant to this
Section 2.13 (setting forth in reasonable detail the basis for requesting
such amount and a calculation thereof in reasonable detail) submitted by such
Lender to the Credit Parties (with a copy to the Administrative Agent) shall be
conclusive absent manifest error.


 


B.                                    Notwithstanding the
provisions of Section 2.8, if any Lender fails to notify the Borrower of
any event or circumstance which will entitle such Lender to compensation
pursuant to Section 2.8 within 365 days after such Lender obtains
knowledge of such event or circumstance, then such Lender shall not be entitled
to compensation from the Borrower for any amount arising prior to the date
which is 365 days before the date on which such Lender notifies the Borrower of
such event or circumstance.


 


2.14                        Increase in the Aggregate Commitments.


 


A.                                    The Borrower may, at any
time but in any event not more than twice in any calendar year prior to the
Maturity Date (unless the Administrative Agent otherwise consents), by notice
to the Administrative Agent, request that the aggregate amount of the
Commitments be


 


47

















 


increased by
(i) increasing the amount of the Commitment of any Lender which has agreed
to such increase (any such Lender, an “Increasing
Lender”) and/or (ii) adding one or more Eligible Assignees as
parties hereto with Commitments in an amount agreed to by such respective
Eligible Assignees; provided that (a) the aggregate amount of any such
increase (for all Increasing Lenders and Eligible Assignees on any particular
day) shall be $25,000,000 or a higher integral multiple of $5,000,000,
(b) the amount of the Commitment of any Eligible Assignee that is not
already a Lender shall be not less than $5,000,000, (c) any such increase
shall be effective as of a date that is at least 90 days prior to the Maturity
Date (the “Increase Date”) as
specified in the related notice to the Administrative Agent; (d) in no
event shall the aggregate amount of increases in the Commitments pursuant to
this Section exceed $125,000,000 and (iv) on the date of any request
by the Borrower for a Commitment Increase and on the related Increase Date, the
conditions set forth in Section 3.3 shall be satisfied.


 


B.                                    On each Increase Date, each
Eligible Assignee that has agreed to participate in the applicable Commitment
Increase (each such Eligible Assignee, an “Assuming
Lender”) shall become a Lender party to this Agreement as of such
Increase Date and the Commitment of each Increasing Lender shall be increased
by the amount agreed upon by such Lender and the Borrower; provided, however,
that the Administrative Agent shall have received on or before such Increase
Date the following, each dated such date:


 


(i)                                     (A) certified
copies of resolutions of the Board of Directors of the Borrower or the
Executive Committee of such Board approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of
counsel for the Borrower (which may be in-house counsel), in form and substance
reasonably satisfactory to the Administrative Agent and its counsel;


 


(ii)                                  an assumption
agreement from each Assuming Lender, if any, in form and substance satisfactory
to the Borrower and the Administrative Agent (each an “Assumption Agreement”), duly executed by
such Assuming Lender, the Administrative Agent and the Borrower; and


 


(iii)                               confirmation
from each Increasing Lender of the increase in the amount of its Commitment in
a writing satisfactory to the Borrower and the Administrative Agent.


 


On each Increase Date, upon
fulfillment of the conditions set forth in the immediately preceding sentence,
the Administrative Agent shall notify the Lenders (including each Assuming
Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by
facsimile, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date. Each
Increasing Lender and each Assuming Lender shall, before 2:00 P.M. (New
York City time) on the Increase Date, make available to the Administrative
Agent at the Funding and Payment Office, in same day funds, in the case of such
Assuming Lender, an amount equal to such Assuming Lender’s ratable portion of
the Loans then outstanding (calculated based on its Commitment as a percentage
of the aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase) and, in the case of such Increasing Lender, an amount
equal to the excess of (i) such Increasing Lender’s ratable portion of the
Loans then outstanding (calculated based on its Commitment as a percentage of
the aggregate Commitments outstanding


 


48

















 


after giving effect to the
relevant Commitment Increase) over (ii) such Increasing Lender’s ratable
portion of the Loans then outstanding (calculated based on its Commitment
(without giving effect to the relevant Commitment Increase) as a percentage of
the aggregate Commitments (without giving effect to the relevant Commitment
Increase). After the Administrative Agent’s receipt of such funds from each
such Increasing Lender and each such Assuming Lender, the Administrative Agent
will promptly thereafter cause to be distributed like funds to the other
Lenders in an amount to each other Lender such that the aggregate amount of the
outstanding Loans owing to each Lender after giving effect to such distribution
equals such Lender’s ratable portion of the aggregate Loans then outstanding
(calculated based on its Commitment as a percentage of the aggregate
Commitments outstanding after giving effect to the relevant Commitment
Increase).


 


SECTION 3.                            CONDITIONS
PRECEDENT


 


3.1                               Conditions
to Effectiveness.


 


The obligations of the
Lenders to make Credit Extensions on the Effective Date are subject to the
satisfaction of the following conditions prior to or on the Effective Date; it
being understood that the Lenders shall be under no obligation to make any Loan
to any Subsidiary of the Borrower unless and until the conditions set forth in
Section 11 with respect to such Subsidiary Borrower have been satisfied:


 


A.                                    Credit and Organizational Documents. The Borrower shall deliver
or cause to be delivered to the Administrative Agent on behalf of each Lender
the following:


 


(i)                                     sufficient
copies of this Agreement originally executed and delivered by the Borrower for
each Lender and a Note for each Lender that has requested the issuance of a
Note to it hereunder;


 


(ii)                                  copies of the
Organizational Documents, dated a recent date prior to the Effective Date,
certified as of the Effective Date (or a recent date prior to the Effective
Date) by the appropriate governmental official or the secretary (or other
appropriate officer) of the Borrower, as applicable;


 


(iii)                               resolutions of
the board of directors (or similar governing body) of the Borrower approving
and authorizing the execution, delivery and performance of the Loan Documents
to which it is a party and certified as of the Effective Date by the secretary
(or other appropriate officer) of the Borrower as being in full force and
effect without modification or amendment;


 


(iv)                              signature and
incumbency certificates of the officers of the Borrower executing the Loan
Documents to which it is a party on behalf of the Borrower;


 


(v)                                 a good standing
certificate or certificate of existence, as applicable, from the Secretary of
State (or similar official) from the jurisdiction of formation of the Borrower,
certified as of the Effective Date (or a recent date prior to the Effective
Date) (the matters referenced in subsections 3.1A(ii)-(v) to be addressed
in a secretary’s certificate substantially in the form of Exhibit VII);


 


49

















 


(vi)                              an officer’s
certificate from an officer of the Borrower substantially in the form of Exhibit VIII,
in form and substance satisfactory to the Administrative Agent, to the effect
that all representations and warranties contained in this Agreement and the
other Loan Documents are true, correct and complete (other than any such
representation or warranty that expressly relates to an earlier date, in which
case such representation or warranty shall have been true, correct and complete
as of such earlier date); that the Borrower and its Subsidiaries are not in
violation of any of the covenants contained in this Agreement and the other
Loan Documents; that no event shall have occurred and be continuing, or would
result from the consummation of the transactions contemplated by this
Agreement, that would constitute an Event of Default or a Potential Event of
Default; and


 


(vii)                           such other
documents as the Administrative Agent on behalf of the Lenders may reasonably
request.


 


B.                                    Opinions of Counsel. The Administrative Agent
shall have received originally executed copies of one or more favorable written
opinions of (i) Brian J. Smith, Senior Vice President and General Counsel
of the Borrower, and (ii) Mayer Brown LLP, special New York counsel for
the Borrower, each in form and substance reasonably satisfactory to the
Administrative Agent and its counsel, dated as of the Effective Date.


 


C.                                    Payment of Amounts Due. The Borrower shall have paid
to the Lead Arrangers and the Agents, all reasonable and documented
out-of-pocket costs, fees (including those fees due on the Effective Date
referred to in Section 2.6), expenses (including reasonable and documented
legal fees and expenses of a single U.S. counsel) and other compensation
payable on the Effective Date.


 


D.                                    Authorizations and Consents.


 


(i)                                     The Borrower
shall have obtained all Governmental Authorizations and all consents of other
Persons, in each case that are necessary in connection with the transactions
contemplated by the Loan Documents, and each of the foregoing shall be in full
force and effect and in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders. All applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose material adverse conditions
on the transactions contemplated by the Loan Documents or the financing thereof
and no action, request for stay, petition for review or rehearing,
reconsideration, or appeal with respect to any of the foregoing shall be
pending, and the time for any applicable agency to take action to set aside its
consent on its own motion shall have expired.


 


(ii)                                  PATRIOT
Act. Each of the Lenders shall have received, at least two
(2) Business Days in advance of the Effective Date, all documentation and
other information required by Governmental Authorities under applicable “know-your-customer”
and anti-money laundering rules and regulations, including as required by
the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (the “Patriot
Act”). Each Lender and each Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower,


 


50
















 


which information includes
the name and address of the Borrower and other information that will allow such
Lender or such Agent, as applicable, to identify the Borrower in accordance
with the Patriot Act.


 


E.            Material Adverse Effect. Since December
31, 2008, there shall not have occurred a Material Adverse Effect.


 


F.            No Litigation. (i) No action,
suit, investigation, litigation, arbitration or proceeding (whether
administrative, judicial or otherwise) affecting the Borrower or any of its
Subsidiaries shall be pending or threatened before any court, Governmental
Authority or arbitrator that could be reasonably expected to, individually or
in the aggregate, (A) have a Material Adverse Effect, other than the
matters set forth on Schedule 3.1F or in the Borrower’s filings with the
Securities and Exchange Commission prior to the Effective Date (the “Disclosed Litigation”), (B) materially impair the transactions contemplated by
the Loan Documents or (C) in any manner call into question or challenge
this Agreement or the making of the Loans and (ii) no material adverse
change in the status, or financial effect on the Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described in the Borrower’s
filings with the Securities and Exchange Commission prior to the Effective Date
shall have occurred.


 


G.            Termination of Existing
Credit Agreement. The Existing Credit Agreement shall have been
terminated in accordance with Section 9.24.


 


3.2                               Conditions
Precedent to each Credit Extension.


 


Subject to Section 11,
the obligations of Lenders to make any Credit Extension hereunder, including
any Credit Extension made on the Effective Date, are subject to the
satisfaction of the following conditions:


 


A.            Notice of
Borrowing. The Administrative Agent shall have received, in
accordance with the provisions of Section 2.1B, originally executed
Notice(s) of Borrowing signed by the applicable Credit Party.


 


B.            Outstanding
Amounts. After giving effect to the making of such Credit
Extensions, (i) the Total Utilization of Commitments then in effect shall
not exceed the Commitments then in effect and (ii) the aggregate Dollar
Amount of Alternative Currency Loans shall not exceed the Alternative Currency
Sublimit.


 


C.            Representations
and Warranties. The representations and warranties contained herein
(excluding, except on the Effective Date, the representations and warranties
made in Section 4.5 (No Material Adverse Change) and the first sentence of
Section 4.7 (No Litigation)) shall be true, correct and complete in all material
respects on and as of the date of such Credit Extension to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete in
all material respects on and as of such earlier date.


 


D.            No Default.
No Event of Default or a Potential Event of Default shall have occurred
and be continuing, or would result from, such Credit Extension.


 


51

















 


E.            Subsidiary Borrowers. In the case
of any Credit Extension to a Subsidiary Borrower, such Subsidiary Borrower
shall not be the subject of any proceeding of the type described in Sections 8.6,
8.7 or 8.9.


 


F.            Additional Documents. The
Administrative Agent shall have received each additional document, certificate,
instrument, legal opinion or other item reasonably requested by it.


 


3.3           Conditions
Precedent to each Commitment Increase.


 


Each Commitment Increase is
subject to the satisfaction of the following conditions: 


 


A.            The representations and
warranties contained herein shall be true, correct and complete in all material
respects on and as of the date of such Commitment Increase to the same extent
as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date.


 


B.            No Default.
No event shall have occurred and be continuing, or would result from
such Commitment Increase, that would constitute an Event of Default or a
Potential Event of Default.


 


C.            Additional
Documents. The Administrative Agent shall have received each
additional document, certificate, instrument, legal opinion or other item
reasonably requested by it.


 


SECTION 4.                            REPRESENTATIONS
AND WARRANTIES


 


In order to induce the
Agents and the Lenders to enter into this Agreement and to induce the Lenders
to make each Credit Extension hereunder, each Credit Party represents and
warrants (solely, in the case of any Subsidiary Borrower, as to itself and its
Subsidiaries) to each Agent, each Lender and the Issuing Bank that the
following statements are true, correct and complete:


 


4.1           Organization,
Powers, Qualification, Good Standing, Business and Subsidiaries.


 


A.            Organization
and Powers. Such Credit Party and each of its Subsidiaries is
duly organized, validly existing and in good standing, as applicable, under the
laws of its jurisdiction of organization, except, in the case of any Subsidiary
that is not a Credit Party, where the failure to be so organized, existing or
in good standing has not had and would not reasonably be expected to have a
Material Adverse Effect. Such Credit Party and each of its Subsidiaries has all
requisite power and authority to own, lease and operate its properties, to
carry on its business as now conducted and as proposed to be conducted, to enter
into the Loan Documents to which it is a party and to carry out the
transactions contemplated thereby.


 


B.            Qualification
and Good Standing. Such Credit Party and each of its Subsidiaries is
duly qualified to do business and in good standing, as applicable, in every
jurisdiction in which its assets are located and wherever necessary to carry
out its business and


 


52

















 


operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and would not reasonably be expected to have a Material Adverse Effect.


 


4.2           Authorization
of Borrowing, etc.


 


A.            Authorization
of Borrowing, etc. The execution, delivery and performance of each Loan
Document to which it is a party have been duly authorized by all necessary
action on the part of each Credit Party.


 


B.            No
Conflict. The execution, delivery and performance by such
Credit Party of each Loan Document to which it is a party and the consummation
of the transactions contemplated by each such Loan Document do not and will not
(i) violate any provision of any Applicable Law with respect to such
Credit Party or any of its Subsidiaries, any of the Organizational Documents of
such Credit Party or any of its Subsidiaries or any order, judgment or decree
of any Governmental Authority binding on such Credit Party or any of its
Subsidiaries, except to the extent such violation would not be reasonably
expected to have a Material Adverse Effect, (ii) conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of such Credit Party or any of its
Subsidiaries, except to the extent such conflict, breach or default would not
reasonably be expected to have a Material Adverse Effect, (iii) result in
or require the creation or imposition of any Lien upon any of the properties or
assets of such Credit Party or any of its Subsidiaries, or (iv) require
any approval of stockholders, partners or members or any approval or consent of
any Person under any Contractual Obligation of such Credit Party or any of its
Subsidiaries, except for such approvals or consents which will be obtained on
or before the Effective Date and disclosed in writing to Administrative Agent.


 


C.            Governmental
Consents. The execution, delivery and performance by such
Credit Party of each Loan Document to which it is a party and the consummation
of the transactions contemplated by such Loan Document do not and will not
require any Governmental Authorization.


 


D.            Binding Obligation.
Each of the Loan Documents to which it is a party has been duly
executed and delivered by such Credit Party and is the legally valid and
binding obligation of such Credit Party, enforceable against such Credit Party
in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors’ rights generally or by equitable principles relating to
enforceability.


 


4.3           Disclosure.


 


No representation or warranty
of such Credit Party or any of its Subsidiaries contained in any Loan Document
or in any other document, certificate or written statement furnished to any
Agent or any Lender by or on behalf of such Credit Party or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to such Credit Party or any of its Subsidiaries in the
case of any document not furnished by any of them) necessary in order to make
the statements contained herein or therein not misleading in light of the
circumstances in


 


53

















 


which the same were made.
Any projections and pro forma financial information contained in such materials
are based upon good faith estimates and assumptions believed by the applicable
Credit Party to be reasonable at the time made, it being recognized by the
Agents and the Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by
any such projections may differ from the projected results.


 


4.4           Financial
Condition.


 


The Borrower has heretofore
delivered to the Administrative Agent the audited consolidated balance sheet of
the Borrower and its Subsidiaries as at December 31, 2008 and the related
audited consolidated statements of income, changes in shareholders’ equity and
cash flows of the Borrower for the Fiscal Year then ended, together with all related
notes and schedules thereto and the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at June 30, 2009 and the related unaudited
consolidated statements of income, changes in shareholders’ equity and cash
flows of the Borrower for the six months then ended. All such statements were
prepared in conformity with GAAP and fairly present, in all material respects,
the financial position of the entities described in such financial statements
as at the respective dates thereof and the results of operations and cash flows
of the entities described therein for each of the periods then ended, subject,
in the case of any such unaudited financial statements, to changes resulting
from audit and normal year-end adjustments. Neither the Borrower nor any of its
Subsidiaries has any contingent liability or liability for taxes, long-term
lease or unusual forward or long-term commitment that is not reflected in the
foregoing financial statements or the notes thereto and which in any such case
could reasonably be expected to have a Material Adverse Effect.


 


4.5           No Material
Adverse Change.


 


Since December 31, 2008, no
event or change has occurred that has caused or evidences, or could reasonably
be expected to have, either individually or in the aggregate, a Material
Adverse Effect.


 


4.6           Intellectual
Property Matters.


 


Except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect, each
of the Borrower and its Subsidiaries owns or possesses rights to use all franchises,
licenses, copyright registrations, copyright applications, issued patents,
patent applications, trademarks, trademark applications, trademark
registrations, trademark rights, service marks, service mark applications,
service mark rights, trade names, trade name rights, copyrights and rights with
respect to the foregoing which are required to conduct its business. Except for
the Disclosed Litigation, (a) no event has occurred which permits, or
after notice or lapse of time or both would permit, the revocation or
termination of any such rights (except for the expiration of patents in the
ordinary course) and (b) neither the Borrower nor any Subsidiary thereof
is liable to any Person for infringement under Applicable Law with respect to
any such rights as a result of its business operations, other than any such
revocation, termination or infringement that could not reasonably be expected
to have a Material Adverse Effect.


 


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4.7           No
Litigation; Compliance with Laws.


 


Except for the Disclosed
Litigation, there are no actions, suits, proceedings (whether administrative,
judicial or otherwise), litigations, arbitrations or governmental
investigations (whether or not purportedly on behalf of the Borrower or any of
its Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), that are
pending or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or any of its Subsidiaries or any property of the Borrower or any
of its Subsidiaries and that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries (i) is in violation of any Applicable
Laws (including, but not limited to, Environmental Laws) that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect or (ii) is subject to or in default with respect to any final judgments,
writs, injunctions, decrees, rules or regulations of any Governmental
Authority, domestic or foreign, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.


 


4.8           No Default.


 


Neither the Borrower nor any
of its Subsidiaries is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any of its
Contractual Obligations, and no condition exists that, with the giving of
notice or the lapse of time or both, would constitute such a default, except
where the consequences, direct or indirect, of such default or defaults, if
any, could not reasonably be expected to have a Material Adverse Effect.


 


4.9           Governmental
Regulation.


 


Neither the Borrower nor any
of its Subsidiaries is subject to regulation under any federal or state statute
or regulation which may limit its ability to incur Indebtedness or which may
otherwise render all or any portion of the Obligations unenforceable. Neither
the Borrower nor any of its Subsidiaries is a “registered investment company”
or a company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in
the Investment Company Act of 1940.


 


4.10         Securities
Activities.


 


Neither the Borrower nor any
of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock. No part of the proceeds of the Loans will be used
to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock in violation of the
provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve
System. Following the application of the proceeds of any Loan or Letter of
Credit, no more than 25% of the value of the consolidated assets of the
Borrower will consist of or be represented by Margin Stock.


 


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4.11        Employee
Benefit Plans.


 


A.            The Borrower and its ERISA
Affiliates are in material compliance with all applicable provisions and
requirements of ERISA and the Internal Revenue Code and the regulations and
published interpretations thereunder with respect to each Employee Benefit
Plan, and have performed all their obligations under each Employee Benefit Plan
in all material respects. Each Employee Benefit Plan which is intended to
qualify under Section 401(a) of the Internal Revenue Code has received
a favorable determination letter from the Internal Revenue Service or has
submitted or will submit a request for such a determination letter within the
applicable remedial amendment period.


 


B.            No material liability to the
PBGC (other than required premium payments) or the Internal Revenue Service has
been or is expected to be incurred by the Borrower or any of its ERISA
Affiliates with respect to any Employee Benefit Plan, and no ERISA Event has
occurred or is reasonably expected to occur, other than ERISA Events for which
the liability has been satisfied in full or is immaterial in amount.


 


C.            As of the most recent
valuation date for each Multiemployer Plan for which the actuarial report is
available, the potential liability of the Borrower or any of its ERISA
Affiliates for a complete withdrawal from such Multiemployer Plan (within the
meaning of Section 4203 of ERISA), when aggregated with such potential
liability for a complete withdrawal from all Multiemployer Plans, based on
information available pursuant to Section 4221(e) of ERISA is not
expected to be material. The Borrower and each of its Subsidiaries and each of
their ERISA Affiliates have complied in all material respects with the
requirements of Section 515 of ERISA with respect to each Multiemployer
Plan and are not in material “default” (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan.


 


4.12        Environmental
Protection.


 


A.            Neither the Borrower nor any
of its Subsidiaries nor any of their respective Facilities or operations is
subject to any outstanding written order, consent decree or settlement
agreement with any Person relating to any Environmental Law, any Environmental
Claim, or any Hazardous Materials Activity that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.


 


B.            Neither the Borrower nor any
of its Subsidiaries has received any letter or request for information under
Section 104 of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. § 9604) or any comparable state law, except to the
extent that such letter or request could not reasonably be expected to have a
Material Adverse Effect.


 


C.            There are and, to the
Borrower’s and each of its Subsidiaries’ knowledge, have been no conditions,
occurrences, or Hazardous Materials Activities which could reasonably be
expected to form the basis of an Environmental Claim against the Borrower or
any of its Subsidiaries that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.


 


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D.            Compliance with all current
or reasonably foreseeable future requirements pursuant to or under
Environmental Laws could not, individually or in the aggregate, reasonably be
expected to give rise to a Material Adverse Effect.


 


E.             Neither the Borrower nor any
of its Subsidiaries nor, to the knowledge of the Borrower, any predecessor of
the Borrower or any Subsidiary of such predecessor, has filed any notice under
any Environmental Law indicating past or present treatment of Hazardous
Materials at any Facility, and none of the Borrower’s nor any of its
Subsidiaries’ operations involves the generation, transportation, treatment,
storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260
270 or any state equivalent, except to the extent that any of the foregoing
could not reasonably be expected to have a Material Adverse Effect.


 


F.             No event or condition has
occurred or is occurring with respect to the Borrower or any of its
Subsidiaries relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity which individually or in the
aggregate has had, or could reasonably be expected to have, a Material Adverse
Effect.


 


4.13       Pari Passu.


 


The Obligations and any
other claims of the Lead Arrangers, the Agents and the Lenders arising
hereunder or under any of the Loan Documents rank at least pari passu with the claims of all of such
Credit Party’s other senior unsecured creditors, except those creditors whose
claims are preferred by any bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors’ rights generally.


 


4.14       Restrictions.


 


There are no contractual
restrictions on any Credit Party or any of their Subsidiaries which prohibit or
otherwise restrict the transfer of cash or other assets from any such
Subsidiary to such Credit Party, other than prohibitions or restrictions
permitted under Section 6.4.


 


SECTION 5.         AFFIRMATIVE COVENANTS


 


The Borrower covenants and
agrees that, so long as the Commitments shall remain in effect and until
payment in full of all Obligations (other than Surviving Obligations) and
cancellation or expiration of all Letters of Credit, unless the provisions of
this Section 5 are waived or amended in accordance with Section 9.6,
the Borrower shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 5.


 


5.1         Financial
Statements and Other Reports.


 


The Borrower will deliver to
Administrative Agent:


 


(i)            Quarterly Financial Statements:   as
soon as available, and in any event within 45 days after the end of each of the
first three (3) Fiscal Quarters of each Fiscal Year, the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such Fiscal Quarter, the related consolidated statements of income of the
Borrower and its Subsidiaries for such Fiscal Quarter and for the period from
the beginning of the then-current


 


57

















 


Fiscal Year to the end of
such Fiscal Quarter, and the related consolidated statements of changes in
shareholders’ equity and cash flows of the Borrower and its Subsidiaries for
the period from the beginning of the then-current Fiscal Year to the end of
such Fiscal Quarter, setting forth in comparative form the consolidated balance
sheet as of the last day of the previous Fiscal Year and consolidated
statements of income and cash flows for the corresponding period or periods of
the previous Fiscal Year, all in reasonable detail and certified by the chief
financial officer of the Borrower as fairly presenting, in all material
respects, the financial condition of the Borrower and its Subsidiaries as at
the date indicated and the results of their operations and cash flows for the
periods indicated in conformity with GAAP, subject to the absence of certain
disclosures that are only required with year-end financial statements and to
changes resulting from audit and normal year-end adjustments;


 


(ii)           Annual Financial Statements:   as
soon as available, and in any event within 90 days after the end of each Fiscal
Year, (i) the consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income, changes in shareholders’ equity and cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case
in comparative form the corresponding figures for the previous Fiscal Year, in reasonable
detail and certified by the chief financial officer of the Borrower as fairly
presenting, in all material respects, the financial condition of the Borrower
and its Subsidiaries as at the date indicated and the results of their
operations and cash flows for the periods indicated; and (ii) with respect
to such consolidated financial statements a report thereon of Deloitte and
Touche LLP or other independent certified public accountants of recognized
national standing selected by the Borrower, and reasonably satisfactory to the
Administrative Agent (which report shall be unqualified as to going concern and
scope of audit, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position
of the Borrower and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the examination by
such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards);


 


(iii)          Compliance Certificate:   together
with each delivery of financial statements of the Borrower and its Subsidiaries
pursuant to Sections 5.1(i) and 5.1(ii), a duly executed and completed
Compliance Certificate;


 


(iv)          Filings:  promptly upon their becoming
publicly available, copies of (a) all financial statements, reports,
notices and proxy statements sent by any Credit Party to its shareholders or
other security holders, and (b) all material information filed by any
Credit Party or any of their Subsidiaries with the Securities and Exchange Commission
(or any Governmental Authority succeeding to any or all of the functions of the
Securities and Exchange Commission) or any national securities exchange;


 


(v)           Notice of Default, etc.:   promptly
upon (and in any event within five (5) Business Days after) any
Responsible Officer of the Borrower obtaining knowledge (a) of any
condition or event that constitutes an Event of Default or Potential Event of
Default or that notice has been given to the Borrower or any of its
Subsidiaries with respect thereto, (b) that any Person


 


58

















 


has given any notice to the
Borrower or any of its Subsidiaries or taken any other action with respect to a
claimed default or event or condition of the type referred to in
Section 8.2, or (c) of the occurrence of any event or change that has
caused or evidences, either in any case individually or in the aggregate, a
Material Adverse Effect, an Officer’s Certificate specifying the nature and
period of existence of such condition, event or change, or specifying the
notice given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or condition, and
what action the Borrower has taken, is taking and proposes to take with respect
thereto;


 


(vi)          Notice of Litigation:   promptly upon
(and in any event within five (5) Business Days after) any Responsible
Officer of any Credit Party obtaining knowledge of (a) the institution of,
or non-frivolous threat of, any action, suit, proceeding, order, consent
decree, settlement (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries or any of their respective property (collectively, “Proceedings”) or (b) any material development in any such Proceeding
that, in the case of either (a) or (b) if adversely determined, could
be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated hereby, written notice
thereof together with such other information as may be reasonably available to
the Borrower or such Subsidiary to enable Lenders and their counsel to evaluate
such matters;


 


(vii)         Change in Rating:   promptly upon (and
in any event within five (5) Business Days after) obtaining knowledge
thereof, written notice of any changes in the rating given the Borrower by
Moody’s or S&P;


 


(viii)        ERISA:   (i) promptly
upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA
Event, a written notice specifying the nature thereof, what action the Borrower
or any of its ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the United States Department of Labor or the PBGC with respect
thereto; and (ii) with reasonable promptness, copies of (1) all
notices received by the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (2) such other
documents or governmental reports or filings relating to any Employee Benefit
Plan as the Administrative Agent shall reasonably request;


 


(ix)          Environmental Reports and Audits:   as
soon as practicable following receipt thereof, copies of all environmental
audits and reports with respect to environmental matters at any property, plant
or other Facility or which relate to any environmental liabilities of the Borrower
or its Subsidiaries which, in any such case, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;


 


(x)           Other Information:   with
reasonable promptness, such other information and data with respect to the
Credit Parties and their Subsidiaries as from time to time may be reasonably
requested by the Administrative Agent or any Lender.


 


59

















 


5.2          Books and Records.


 


The Borrower will, and will
cause each of its Subsidiaries to keep proper books of records and account in
which full, true and correct entries in all material respects in conformity
with GAAP consistently applied shall be made of all material dealings and
transactions in relation to its business and activities and permit
representatives or agents of the Administrative Agent or any Lender to visit
and inspect any of its properties or assets and examine and make abstracts from
any of its books and records upon reasonable prior notice during normal business
hours and as often as may reasonably be desired, and to discuss the business,
operations, properties and financial and other condition of the Borrower and
its Subsidiaries with officers and employees of the Borrower and independent
public accountants of the Borrower and its Subsidiaries so long as the Borrower
is provided the opportunity to participate in such discussions.


 


5.3          Existence.


 


Except as otherwise
permitted by Section 6.6, the Borrower will, and will cause each of its
Subsidiaries to, at all times preserve and keep in full force and effect its
existence and all rights, privileges, licenses and franchises material to its
business; provided that neither the Borrower nor any of its Subsidiaries
shall be required to preserve any such right, privilege, license or franchise
if management of the Borrower or such Subsidiary shall reasonably determine
that the preservation thereof is no longer desirable in the conduct of the
business of such Person, and that the loss thereof is not disadvantageous in any
material respect to the Borrower or the Lenders.


 


5.4          Insurance.


 


The Borrower will maintain
or cause to be maintained, with financially sound and reputable insurers, such
public liability insurance, third party property damage insurance, business
interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of the
Borrower and its Subsidiaries as may customarily be carried or maintained under
similar circumstances by Persons of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance),
with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons.


 


5.5          Payment of Taxes.


 


The Borrower will, and will
cause each of its Subsidiaries to, pay all federal income Taxes and other
material Taxes imposed upon it or any of its properties or assets or in respect
of any of its income, businesses or franchises before any penalty or fine
accrues thereon; provided no such Tax need be paid (a) if it is
being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted, so long as adequate reserve or other appropriate
provision, as shall be required in conformity with GAAP shall have been made
therefor or (b) if the aggregate amount of all unpaid Taxes that have not
been paid by the Borrower and its Subsidiaries (excluding amounts being
contested as provided in clause (a)) does not exceed $5,000,000 and could not
reasonably be expected to have a Material Adverse Effect. The


 


60
















 


Borrower will not, nor will
it permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income Tax return with any Person (other than the Borrower or any
of its Subsidiaries).


 


5.6                               Payment and Performance of Obligations.


 


The Borrower will, and will
cause each of its Subsidiaries to, pay and perform all Obligations under this
Agreement and the other Loan Documents.


 


5.7                               Maintenance of Properties.


 


The Borrower will, and will
cause each of its Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition, ordinary wear and tear excepted, all
material properties used or useful in the business of the Borrower and its
Subsidiaries and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof.


 


5.8                               Compliance with Laws.


 


The Borrower will, and will
cause each of its Subsidiaries to, comply with the requirements of all
Applicable Laws, rules, regulations and orders of any Governmental Authority
(including, but not limited to, all Environmental Laws), noncompliance with
which could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.


 


5.9                               Use of Proceeds.


 


A.                                    Proceeds of Loans.   The proceeds of each Loan
and each Letter of Credit shall be used for general corporate purposes.


 


B.                                    Margin Regulations.   No part of the proceeds of
the Loans made to a Credit Party will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock in violation of the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.


 


5.10                        Claims Pari Passu.


 


Each Credit Party shall
ensure that at all times the Obligations and any other claims of the Lead
Arrangers, the Agents and the Lenders arising hereunder or under any other Loan
Document rank at least pari passu
with the claims of such Credit Party’s other senior unsecured creditors, except
those creditors whose claims are preferred by any bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally.


 


5.11                        Further Assurances.


 


At any time or from time to
time upon the request of the Administrative Agent, the Borrower will, and will
cause each of its Subsidiaries to, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and
things as the


 


61

















 


Administrative Agent may
reasonably request in order to effect fully the purposes of the Loan Documents.
In furtherance and not in limitation of the foregoing, the Borrower shall take,
and shall cause each of its Subsidiaries to take, such actions as the
Administrative Agent may reasonably request from time to time to ensure that
the Guaranteed Obligations are guarantied by the Guarantor.


 


SECTION 6.                            NEGATIVE COVENANTS


 


The Borrower covenants and
agrees that, so long as the Commitments hereunder shall remain in effect and
until payment in full of all Obligations (other than Surviving Obligations) and
cancellation or expiration of all Letters of Credit, unless the provisions of
this Section 6 are waived or amended in accordance with Section 9.6,
the Borrower shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.


 


6.1                               Liens.


 


The Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind of the Borrower or any of its Subsidiaries, whether now owned
or hereafter acquired, or any income or profits therefrom, except:


 


(i)                                     Liens existing
on the Effective Date and described on Schedule 6.1 hereto and other
Liens securing Indebtedness existing on the Effective Date the individual
principal amount of which does not exceed $500,000;


 


(ii)                                  Liens imposed
by law for Taxes that are not yet required to be paid pursuant to
Section 5.5;


 


(iii)                               statutory Liens
of landlords, banks (including rights of set-off), carriers, warehousemen,
mechanics, repairmen, workmen and material men, and other Liens imposed by law,
in each case incurred in the ordinary course of business for amounts not yet
overdue or for amounts that are overdue and that (in the case of any such
amounts overdue for a period in excess of five days) are being contested in
good faith by appropriate proceedings, so long as such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made for any such contested amounts;


 


(iv)                              deposits made
in the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money
or other Indebtedness) incurred in the ordinary course of business;


 


(v)                                 easements,
rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title to real property of the Borrower or any Subsidiary of
the Borrower, in each case which do not and will not, individually or in the
aggregate, interfere in any material respect with the use or value thereof;


 


62

















 


(vi)                              any interest or
title of a lessor or sublessor under any operating or true lease of real estate
entered into by the Borrower or one of its Subsidiaries in the ordinary course
of its business covering only the assets so leased;


 


(vii)                           Liens securing
Indebtedness pursuant to Capital Leases; provided that (a) such
Liens are only in respect of the property or assets subject to, and secure
only, such Capital Leases, (b) Indebtedness of Subsidiaries under Capital
Leases shall be limited by the provisions of Section 6.2 and (c) the
aggregate amount of all Indebtedness of the Borrower under Capital Leases shall
not at any time exceed $25,000,000;


 


(viii)                        purchase money
Liens in real property, improvements thereto or equipment hereafter acquired
(or, in the case of improvements, constructed) by the Borrower or one of its
Subsidiaries; provided that (a) such Lien secures Indebtedness
permitted by Section 6.2, (b) such Lien is incurred, and the
Indebtedness secured thereby is created, within ninety (90) days after
completion of such acquisition (or construction), (c) the Indebtedness
secured thereby does not exceed 100% of the lesser of the cost or the fair market
value of such real property, improvements or equipment at the time of such
acquisition (or construction) and (d) such Lien does not apply to any
other property or assets of the Borrower or any of its Subsidiaries;


 


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


 


(x)                                   licenses of
patents, trademarks and other intellectual property rights granted by the
Borrower or any of its Subsidiaries in the ordinary course of business and not
interfering in any respect with the ordinary conduct of the business of the
Borrower or such Subsidiary; and


 


(xi)                                Liens on assets
of Persons acquired after the Effective Date; provided that such Liens
exist at the time such Person becomes a Subsidiary and were not created in
anticipation thereof;


 


(xii)                             Liens incurred
in connection with Qualified Receivables Transactions;


 


(xiii)                          Any Lien
incurred to renew, extend or refinance obligations secured by a Lien referred
to in clause (viii) or (xi) above, provided that (a) the
principal or face amount of the obligations secured by any such Lien does not
exceed the outstanding principal or face amount of the obligations so renewed,
extended or refinanced immediately prior to such renewal, extension or
refinancing and (b) any such Lien attaches solely to the assets that
secured the obligations so renewed, extended or refinanced; and


 


(xiv)                         Liens not
otherwise permitted by the foregoing clauses of this Section 6.1 securing
obligations in an aggregate principal amount at any time outstanding not to
exceed 10% of Consolidated Net Worth.


 


(xv)                            Notwithstanding
any of the foregoing exceptions, the Credit Parties will not, and will not
permit any of their Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon the Capital Stock of any of their Subsidiaries or any
Indebtedness owed to it by the Credit Parties or any of their Subsidiaries,
excluding any Lien on Capital Stock of or


 


63

















 


Indebtedness owed to a
Person that exists at the time such Person becomes a Subsidiary and was not
created in anticipation thereof.


 


6.2                               Indebtedness.


 


The Borrower shall not
permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or guaranty, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:


 


(i)                                     Indebtedness
owing by any wholly-owned Subsidiary of the Borrower to the Borrower or another
wholly-owned Subsidiary of the Borrower;


 


(ii)                                  Indebtedness
existing on the Effective Date and set forth on Schedule 6.2, but, in
each case, not any extensions, renewals or replacements of such Indebtedness
except (a) renewals and extensions expressly provided for in the
agreements evidencing any such Indebtedness as the same are in effect on the
date of this Agreement and (b) refinancings and extensions of any such
Indebtedness if the terms and conditions thereof are not less favorable to the
obligor thereon or to the Lenders than the Indebtedness being refinanced or
extended or are otherwise on substantially then prevailing market terms, and
the average life to maturity thereof is greater than or equal to that of the
Indebtedness being refinanced or extended; provided such Indebtedness permitted
under the immediately preceding clause (a) or (b) above shall not
(A) include Indebtedness of an obligor that was not an obligor with
respect to the Indebtedness being extended, renewed or refinanced,
(B) exceed in a principal amount the Indebtedness being renewed, extended
or refinanced or (C) be incurred, created or assumed if any Potential
Event of Default or Event of Default has occurred and is continuing or would
result therefrom;


 


(iii)                               Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business, provided that such Indebtedness is extinguished
within seven (7) Business Days of its incurrence;


 


(iv)                              Indebtedness
owed to (including obligations in respect of letters of credit or bank
guarantees or similar instruments for the benefit of) any Person providing
workers’ compensation, health, disability or other employee benefits or
property, casualty or liability insurance to the Borrower or any of its
Subsidiaries, pursuant to reimbursement or indemnification obligations to such
Person, provided that upon the incurrence of Indebtedness with respect
to reimbursement obligations regarding workers’ compensation claims, such obligations
are reimbursed not later than 30 days following such incurrence;


 


(v)                                 Indebtedness
incurred by any Subsidiary of the Borrower arising from agreements providing
for indemnification, adjustment of purchase price or similar obligations, or
from guaranties or letters of credit, surety bonds or performance bonds
securing the performance of the Borrower or any such Subsidiary pursuant to
such agreements, in connection with permitted dispositions of any business or
asset (including the stock of any Subsidiary of the Borrower);


 


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(vi)                              Indebtedness
which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of
business of the Borrower and its Subsidiaries;


 


(vii)                           guaranties in
the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of the Borrower and its Subsidiaries;


 


(viii)                        Indebtedness
(including guarantees of any such Indebtedness) of a Subsidiary located in a
country other than the U.S.; provided that the outstanding principal
amount of all Indebtedness permitted by this clause (viii) (without double
counting guarantees of any such Indebtedness) shall not at any time exceed
$100,000,000;


 


(ix)                                the
Obligations;


 


(x)                                   contingent
obligations under letters of credit issued in the ordinary course of business
to support trade obligations;


 


(xi)                                Indebtedness of
any Person acquired after the Effective Date; provided that such Indebtedness
exists at the time such Person becomes a Subsidiary and was not created in
anticipation thereof; and


 


(xii)                             other
Indebtedness in an aggregate principal amount at any time outstanding not to
exceed 15% of Consolidated Net Worth.


 


6.3                               Acquisitions.


 


The Borrower will not, and
will not permit any of its wholly-owned Subsidiaries to, make any Acquisition
(other than any Acquisition by the Borrower or a wholly-owned Subsidiary of the
Borrower of a wholly-owned Subsidiary of the Borrower) if an Event of Default
or Potential Event of Default exists or would result therefrom.


 


6.4                               Restrictions on Subsidiary Distributions.


 


(i)                                     Except as
provided herein, the Borrower shall not, and shall not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary of the Borrower to (a) pay dividends or make any other
distributions on any of such Subsidiary’s Capital Stock owned by the Borrower or
any other Subsidiary of the Borrower, (b) repay or prepay any Indebtedness
owed by such Subsidiary to the Borrower or any other Subsidiary of the
Borrower, (c) make loans or advances to the Borrower or any other
Subsidiary of the Borrower, or (d) transfer any of its property or assets
to the Borrower or any other Subsidiary of the Borrower, other than
restrictions (i) existing under this Agreement, (ii) in agreements
evidencing Indebtedness pursuant to Capital Leases permitted by Section 6.2
that impose restrictions on the property so acquired (except that such
agreements shall not in any manner limit the ability of the Borrower or any
Subsidiary of the Borrower to pay dividends or make any other distribution),
(iii) by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses, Joint Venture
agreements and similar agreements entered into in the ordinary course of
business, (iv) by reason of customary subordination provisions in any


 


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guaranty or similar
arrangement (including any arrangement of the type described in clause (vii),
(viii) or (ix) of the definition of “Indebtedness”), (v) imposed
on a Subsidiary pursuant to an agreement which has been entered into in
connection with the disposition of all of substantially all of the capital
stock or assets of such Subsidiary or (vi) existing at the time a Person
becomes a Subsidiary and not created in anticipation thereof.


 


6.5                               Restricted Payments.


 


The Borrower shall not, and
shall not permit any Subsidiary to, directly or indirectly, declare, pay, make
or set aside any sum for any Restricted Payment if an Event of Default or a
Potential Event of Default exists or would result therefrom.


 


6.6                               Restriction on Fundamental Changes and Asset Sales.


 


The Borrower shall not, and
shall not permit any of its Subsidiaries to, enter into any transaction of
merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor
or sub-lessor), exchange, transfer or otherwise dispose of, in one transaction
or a series of transactions, all or substantially all of its business, assets
or property; provided that (a) the Borrower and its Subsidiaries may make
Acquisitions permitted by Section 6.3; and (b) so long as no Event of
Default or Potential Event of Default exists or would result therefrom:


 


(i)                       any Subsidiary
of the Borrower may merge or consolidate with or into, or dispose of assets to,
any other Subsidiary or to the Borrower;


 


(ii)                                  any Subsidiary
may merge or consolidate with or into another Person, convey, transfer, lease
or otherwise dispose of all or any portion of its assets so long as
(A) the consideration received in respect of such merger, consolidation,
conveyance, transfer, lease or other disposition is at least equal to the fair
market value of such assets and (B) no Material Adverse Effect could
reasonably be expected to result from such merger, consolidation, conveyance,
transfer, lease or other disposition; and


 


(iii)                               the Borrower
may merge with any other Person so long as the Borrower is the surviving
entity.


 


6.7                               Conduct of Business.


 


From and after the Effective
Date, the Borrower shall not, and shall not permit any of its Subsidiaries to,
engage in any material business or conduct any activities other than
(a) businesses conducted by the Borrower and its Subsidiaries as of the
Effective Date and (b) any businesses reasonably related to the foregoing.


 


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6.8                               Fiscal Year.


 


The Borrower shall not make
or permit, nor permit any of its Subsidiaries to make or permit, any change in
the Fiscal Year of the Borrower or any of its Subsidiaries (provided that any
Subsidiary may change its fiscal year to match the Borrower’s Fiscal Year).


 


6.9                               Interest Rate Agreements and Currency Agreements.


 


The Borrower shall not, and
shall not permit any of its Subsidiaries to, enter into any Interest Rate
Agreement or Currency Agreement after the Effective Date except Interest Rate
Agreements and Currency Agreements entered into to hedge or manage bona fide
risks to which the Borrower or any such Subsidiary is exposed in the conduct of
its business or the management of its liabilities (and, in any event, not for
speculative purposes).


 


6.10                        Transactions with Shareholders and Affiliates.


 


The Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, enter into
or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service or the making of any
intercompany loan) with any Affiliate of the Borrower or any of its
Subsidiaries that has terms that are less favorable to the Borrower or such
Subsidiary, as the case may be, than those that might be obtained at the time
in a comparable arm’s length transaction from a Person who is not an Affiliate;
provided the foregoing restriction shall not apply to (a) any
transaction between the Borrower and its Subsidiaries or between such
Subsidiaries to the extent otherwise permitted hereunder; (b) reasonable
and customary fees paid to members of any board of directors (or similar
governing body) of the Borrower or any of its Subsidiaries;
(c) compensation arrangements for officers and other employees of the
Borrower and its Subsidiaries entered into in the ordinary course of business;
(d) transactions described on Schedule 6.10; and
(e) transactions in connection with Qualified Receivables Transactions
permitted under this Agreement.


 


6.11                        Financial Covenants.


 


A.                                    Interest Coverage Ratio. The Borrower shall not
permit the Interest Coverage Ratio as of the last day of any Fiscal Quarter to
be less than 5.00 to 1.


 


B.                                    Leverage Ratio. The Borrower shall not permit the Leverage
Ratio as of the last day of any Fiscal Quarter to be greater than 3.25 to 1.


 


C.                                    Certain Calculations. With respect to any period
during which the Borrower or any Subsidiary has completed an Acquisition or an
Asset Sale that the Borrower or the Administrative Agent (acting at the request
or with the consent of the Requisite Lenders) reasonably determines, as
evidenced by a notice to the other, is material (each, a “Subject Transaction”), for purposes of determining compliance with the financial
covenants set forth in this Section 6.11, Consolidated Adjusted EBITDA
shall be calculated with respect to such period on a pro forma basis using the
historical audited financial statements of any business so acquired or to be
acquired or sold or to be sold and the consolidated financial statements of the
Borrower and its Subsidiaries which shall be reformulated as if such Subject
Transaction, and any


 


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Indebtedness incurred or
repaid in connection therewith, had been consummated or incurred or repaid at
the beginning of such period.


 


SECTION 7.                            GUARANTY


 


7.1                               Guaranty of the Obligations.


 


The Guarantor hereby
irrevocably and unconditionally guarantees to the Administrative Agent for the
ratable benefit of the Beneficiaries the due and punctual payment in full of
all Obligations of the Subsidiary Borrowers when the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed Obligations”).


 


7.2                               Payment by the Borrower.


 


The Guarantor hereby agrees,
in furtherance of the foregoing and not in limitation of any other right which
any Beneficiary may have at law or in equity against the Guarantor by virtue
hereof, that upon the failure of any Subsidiary Borrower to pay any of the
Guaranteed Obligations when and as the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
§ 362(a)), the Guarantor will upon demand pay, or cause to be paid, in Cash, to
the Administrative Agent for the ratable benefit of the Beneficiaries, an
amount equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such
Guaranteed Obligations (including interest which, but for such Subsidiary
Borrower becoming the subject of a case under the Bankruptcy Code, would have
accrued on such Guaranteed Obligations, whether or not a claim is allowed
against such Credit Party for such interest in the related bankruptcy case) and
all other Guaranteed Obligations then owed to the Beneficiaries as aforesaid.


 


7.3                               Liability of Guarantor Absolute.


 


The Guarantor agrees that
its Obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes a
legal or equitable discharge of a guarantor or surety other than payment in
full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, the Guarantor agrees as follows:


 


(a)                                  this Guaranty
is a guaranty of payment when due and not of collectability. This Guaranty is a
primary obligation of the Guarantor and not merely a contract of surety;


 


(b)                                 the
Administrative Agent may enforce this Guaranty upon the occurrence of an Event
of Default notwithstanding the existence of any dispute between any Credit
Party and any Beneficiary with respect to the existence of such Event of
Default;


 


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(c)                                  the Obligations
of the Guarantor hereunder are independent of the Obligations of the Borrower
and the Subsidiary Borrowers and the obligations of any other guarantor
(including any other Guarantor), and a separate action or actions may be
brought and prosecuted against the Guarantor whether or not any action is
brought against the Borrower or any Subsidiary Borrower or any of such other
guarantors and whether or not the Borrower or any Subsidiary Borrower is joined
in any such action or actions;


 


(d)                                 payment by the
Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no
way limit, affect, modify or abridge the Guarantor’s liability for any portion
of the Guaranteed Obligations which has not been paid. Without limiting the
generality of the foregoing, if the Administrative Agent is awarded a judgment
in any suit brought to enforce the Guarantor’s covenant to pay a portion of the
Guaranteed Obligations, such judgment shall not be deemed to release the
Guarantor from its covenant to pay the portion of the Guaranteed Obligations
that is not the subject of such suit;


 


(e)                                  any
Beneficiary, upon such terms as it deems appropriate, without notice or demand
and without affecting the validity or enforceability hereof or giving rise to
any reduction, limitation, impairment, discharge or termination of the
Guarantor’s liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time, place,
manner or terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any
agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the
payment hereof or the Guaranteed Obligations; (iv) release, surrender,
exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or
modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or
any other obligation of any Person with respect to the Guaranteed Obligations;
(v) enforce and apply any security now or hereafter held by or for the
benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and
direct the order or manner of sale thereof, or exercise any other right or
remedy that such Beneficiary may have against any such security, in each case
as such Beneficiary in its discretion may determine consistent herewith and any
applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of the Guarantor against any Subsidiary Borrower or any
security for the Guaranteed Obligations; and (vi) exercise any other
rights available to it under the Loan Documents; and


 


(f)                                    this Guaranty
and the obligations of the Guarantor hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed
Obligations), including the occurrence of any of the following, whether or not
the Guarantor shall have had notice or knowledge of any of them: (i) any
failure or omission to assert or enforce or agreement or election not to assert
or enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Loan Documents, at law, in equity or


 


69

















 


otherwise) with respect to
the Guaranteed Obligations or any agreement relating thereto, or with respect
to any other guaranty of or security for the payment of the Guaranteed
Obligations; (ii) any rescission, waiver, amendment or modification of, or
any consent to departure from, any of the terms or provisions (including
provisions relating to events of default) hereof, any other Loan Document or
any agreement or instrument executed pursuant thereto, or of any other guaranty
or security for the Guaranteed Obligations, in each case whether or not in
accordance with the terms hereof or such Loan Document or any agreement
relating to such other guaranty or security; (iii) the Guaranteed
Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the
other Loan Documents or from the proceeds of any security for the Guaranteed
Obligations, except to the extent such security also serves as collateral for
Indebtedness other than the Guaranteed Obligations) to the payment of
Indebtedness other than the Guaranteed Obligations, even though any Beneficiary
might have elected to apply such payment to any part or all of the Guaranteed
Obligations; (v) any Beneficiary’s consent to the change, reorganization
or termination of the corporate structure or existence of the Borrower or any
of its Subsidiaries and to any corresponding restructuring of the Guaranteed
Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set offs or counterclaims which any
Credit Party may allege or assert against any Beneficiary in respect of the
Guaranteed Obligations, including failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and
usury; and (viii) any other act or thing or omission, or delay to do any
other act or thing, which may or might in any manner or to any extent vary the
risk of the Guarantor as an obligor in respect of the Guaranteed Obligations.


 


7.4                               Waivers by Guarantor.


 


The Guarantor hereby waives,
for the benefit of Beneficiaries: (a) any right to require any
Beneficiary, as a condition of payment or performance by the Guarantor, to
(i) proceed against the Borrower or the Subsidiary Borrowers, any other
guarantor of the Guaranteed Obligations or any other Person, (ii) proceed
against or exhaust any security held from the Borrower or any Subsidiary Borrower,
any such other guarantor or any other Person, (iii) proceed against or
have resort to any balance of any Deposit Account or credit on the books of any
Beneficiary in favor of the Borrower or any Subsidiary Borrower or any other
Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Borrower or any Subsidiary
Borrower including any defense based on or arising out of the illegality, lack
of validity or unenforceability of the Guaranteed Obligations or any agreement
or instrument relating thereto or by reason of the cessation of the liability
of the Borrower or any Subsidiary Borrower from any cause other than payment in
full of the Guaranteed Obligations; (c) any defense based upon any statute
or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon any Beneficiary’s errors or
omissions in the administration of the Guaranteed Obligations, except behavior
which amounts to bad faith; (e) (i) any principles or provisions of
law, statutory or otherwise, which are or might be in conflict with the terms
hereof and any legal or equitable discharge of the Guarantor’s obligations
hereunder, (ii) the benefit of any statute of limitations affecting the
Guarantor’s liability hereunder or the enforcement hereof,


 


70
















 


(iii)   any
rights to set offs, recoupments and counterclaims, and (iv) promptness,
diligence and any requirement that any Beneficiary protect, secure, perfect or
insure any security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices
of dishonor and notices of any action or inaction, including acceptance hereof,
notices of default hereunder, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to any Subsidiary Borrower and notices of any of the
matters referred to in Section 7.2 and any right to consent to any
thereof; and (g) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms hereof.


 


7.5                               Guarantor’s Rights of Subrogation, Contribution, etc.


 


Until the Guaranteed
Obligations shall have been indefeasibly paid in full and the Commitments shall
have terminated and all Letters of Credit shall have expired or been cancelled,
the Guarantor hereby waives any claim, right or remedy, direct or indirect,
that the Guarantor now has or may hereafter have against any Subsidiary Borrower
or any of its assets in connection with this Guaranty or the performance by the
Guarantor of its Obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute, under common law or
otherwise and including (a) any right of subrogation, reimbursement or
indemnification that the Guarantor now has or may hereafter have against any
Subsidiary Borrower with respect to the Guaranteed Obligations, (b) any
right to enforce, or to participate in, any claim, right or remedy that any
Beneficiary now has or may hereafter have against any Subsidiary Borrower, and
(c) any benefit of, and any right to participate in, any collateral or
security now or hereafter held by any Beneficiary. In addition, until the Guaranteed
Obligations shall have been indefeasibly paid in full and the Commitments shall
have terminated and all Letters of Credit shall have expired or been cancelled,
the Guarantor shall withhold exercise of any right of contribution the
Guarantor may have against any other guarantor (including any other Guarantor)
of the Guaranteed Obligations. The Guarantor further agrees that, to the extent
the waiver or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification the Guarantor may have
against any Subsidiary Borrower or against any collateral or security, and any
rights of contribution the Guarantor may have against any such other guarantor,
shall be junior and subordinate to any rights any Beneficiary may have against
any Subsidiary Borrower, to all right, title and interest any Beneficiary may have
in any such collateral or security, and to any right any Beneficiary may have
against such other guarantor. If any amount shall be paid to the Guarantor on
account of any such subrogation, reimbursement, indemnification or contribution
rights at any time when all Guaranteed Obligations shall not have been finally
and indefeasibly paid in full, such amount shall be held in trust for the
Administrative Agent on behalf of the Beneficiaries and shall forthwith be paid
over to the Administrative Agent for the benefit of the Beneficiaries to be
credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.


 


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7.6                               Subordination of Other Obligations.


 


Any Indebtedness of any
Subsidiary Borrower now or hereafter held by the Guarantor is hereby
subordinated in right of payment to the Guaranteed Obligations, and any such
Indebtedness collected or received by the Guarantor after an Event of Default
has occurred and is continuing shall be held in trust for the Administrative
Agent on behalf of the Beneficiaries and shall forthwith be paid over to the
Administrative Agent for the benefit of the Beneficiaries to be credited and
applied against the Guaranteed Obligations but without affecting, impairing or
limiting in any manner the liability of the Guarantor under any other provision
hereof.


 


7.7                               Continuing Guaranty.


 


This Guaranty is a
continuing guaranty and shall remain in effect until all of the Guaranteed Obligations
shall have been paid in full and the Commitments shall have terminated and all
Letters of Credit shall have expired or been cancelled. The Guarantor hereby
irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.


 


7.8                               Authority of Credit Parties.


 


It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Credit Party or the
officers, directors or any agents acting or purporting to act on behalf of any
of them.


 


7.9                               Financial Condition of Credit Parties.


 


Any Credit Extension may be
made to any Credit Party or continued from time to time, without notice to or
authorization from the Guarantor regardless of the financial or other condition
of any Credit Party at the time of any such grant or continuation is entered
into, as the case may be. No Beneficiary shall have any obligation to disclose
or discuss with the Guarantor its assessment, or the Guarantor’s assessment, of
the financial condition of any Credit Party. The Guarantor has adequate means
to obtain information from the other Credit Parties on a continuing basis
concerning the financial condition of the other Credit Parties and their
ability to perform their Obligations under the Loan Documents, and the
Guarantor assumes the responsibility for being and keeping informed of the
financial condition of the other Credit Parties and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations. The
Guarantor hereby waives and relinquishes any duty on the part of any
Beneficiary to disclose any matter, fact or thing relating to the business,
operations or conditions of any other Credit Parties now known or hereafter
known by any Beneficiary.


 


7.10                        Bankruptcy, etc.


 


(a)                                  So long as any
Guaranteed Obligations remain outstanding, the Guarantor shall not, without the
prior written consent of the Administrative Agent acting pursuant to the
instructions of the Requisite Lenders, commence or join with any other Person
in commencing any bankruptcy, reorganization or insolvency case or proceeding
of or against any other Credit Party. The Obligations of the Guarantor
hereunder shall not be reduced, limited, impaired, discharged, deferred,
suspended or terminated by any case or proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or


 


72

















 


arrangement of any Credit
Party or by any defense which such Credit Party or any other Credit Party may
have by reason of the order, decree or decision of any court or administrative
body resulting from any such proceeding.


 


(b)                                 The Guarantor
acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding
referred to in clause (a) above (or, if interest on any portion of the
Guaranteed Obligations ceases to accrue by operation of law by reason of the
commencement of such case or proceeding, such interest as would have accrued on
such portion of the Guaranteed Obligations if such case or proceeding had not
been commenced) shall be included in the Guaranteed Obligations because it is
the intention of the Guarantor and the Beneficiaries that the Guaranteed
Obligations which are guaranteed by the Guarantor pursuant hereto should be
determined without regard to any rule of law or order which may relieve
any other Credit Party of any portion of such Guaranteed Obligations. The
Guarantor will permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to pay the
Administrative Agent, or allow the claim of the Administrative Agent in respect
of, any such interest accruing after the date on which such case or proceeding is
commenced.


 


(c)                                  In the event
that all or any portion of the Guaranteed Obligations are paid by any Credit
Party, the Obligations of the Guarantor hereunder shall continue and remain in
full force and effect or be reinstated, as the case may be, in the event that
all or any part of such payment (s) are rescinded or recovered directly or
indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes hereunder.


 


SECTION 8.                            EVENTS OF DEFAULT


 


If any of the following
conditions or events (each an “Event of
Default”) shall occur:


 


8.1                               Failure to Make Payments When Due.


 


Failure by any Credit Party
to pay (i) any principal of any Loan when due, whether at stated maturity,
by acceleration, by mandatory prepayment, by demand pursuant to Section 7
or otherwise; (ii) when due any amount payable to the Issuing Bank in
reimbursement of any drawing under a Letter of Credit; or (iii) any interest
on any Loan or any fee or any other amount due under this Agreement within five
(5) Business Days after the date due; or


 


8.2                               Default in Other Agreements.


 


Failure of any Credit Party
or any of their respective Subsidiaries to pay when due any principal of or
interest on or any other amount payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in Section 8.1 above) in
excess of $30,000,000 in the aggregate and in each case beyond the end of any
grace period provided therefor, if any; or (ii) breach or default by any
Credit Party or any of their respective Subsidiaries with respect to any other
material term of (a) one or more items of such Indebtedness or
(b) any loan agreement, mortgage, indenture or other agreement relating to
such item (s) of Indebtedness, in each case beyond the end of any grace
period provided therefor, if any, if the effect of such breach or default is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee on
behalf


 


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of such holder or holders)
to cause, such Indebtedness to become or be declared due and payable (or
redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; or


 


8.3                               Breach of Certain Covenants.


 


Failure of any Credit Party
to perform or comply with any term or condition contained in Sections 5.1
(v)(a), 5.3 (solely with respect to (1) the existence of any Credit Party
and (2) the failure of the Borrower to preserve or keep in full force and
effect its rights, privileges, licenses and franchises if such failure would
reasonably be expected to have a Material Adverse Effect), 5.9 or 6 of this
Agreement; or


 


8.4                               Breach of Representation or Warranty.


 


Any representation,
warranty, certification or other statement made by any Credit Party in any Loan
Document or in any statement or certificate at any time given by such Credit
Party in writing pursuant thereto or in connection therewith shall be false in any
material respect on the date as of which made; or


 


8.5                               Other Defaults Under Loan Documents.


 


Any Credit Party shall
default in the performance of or compliance with any term contained in this
Agreement or any other Loan Document (other than those specified in Sections
8.1, 8.2, 8.3 and 8.4) and such default or non-compliance shall not be cured or
waived within thirty (30) days after the applicable Credit Party shall have
received notice from the Administrative Agent of such default; or


 


8.6                               Involuntary Bankruptcy; Appointment of Receiver, etc.


 


(i) A court of
competent jurisdiction shall enter a decree or order for relief in respect of the
Borrower or any of its Significant Subsidiaries in an involuntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, which decree or order is not stayed; or
any other similar relief shall be granted under any applicable federal or state
law; or (ii) an involuntary case shall be commenced against the Borrower
or any of its Significant Subsidiaries under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, examiner,
custodian or other officer having similar powers over the Borrower or any of
its Significant Subsidiaries, or over all or a substantial part of their
respective property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee, examiner or other
custodian of the Borrower or any of its Significant Subsidiaries for all or a
substantial part of their respective property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial
part of the property of the Borrower or any of its Significant Subsidiaries,
and any such event described in this clause (ii) shall continue for sixty
(60) days unless dismissed, bonded or discharged; or


 


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8.7                               Voluntary Bankruptcy; Appointment of Receiver, etc.


 


The Borrower or any of its
Significant Subsidiaries shall have an order for relief entered with respect to
it or commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or
the Borrower or any of its Significant Subsidiaries shall make any assignment
for the benefit of creditors; or the Borrower or any of its Significant
Subsidiaries shall be unable, or shall fail generally, or shall admit in
writing their respective inability, to pay its debts as such debts become due;
or the board of directors (or similar governing body) of the Borrower or any of
its Significant Subsidiaries (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of the actions
referred to in this Section 8.7 or in Section 8.6 above; or


 


8.8                               Judgments and Attachments.


 


Any money judgment, writ or
warrant of attachment or similar process involving in excess of $50,000,000
(not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
the Borrower or any of its Subsidiaries, or any of their respective assets, and
shall remain undischarged, unvacated, unbonded or unstayed for a period of
sixty (60) days (or in any event later than five (5) days prior to the
date of any proposed sale thereunder); or


 


8.9                               Dissolution.


 


Any order, judgment or
decree shall be entered against the Borrower or any of its Significant
Subsidiaries decreeing the dissolution or split up of such Person; or


 


8.10                        Employee Benefit Plans.


 


There shall occur one or
more ERISA Events which individually or in the aggregate results in or might
reasonably be expected to result in liability of the Borrower or any of its
Subsidiaries or any of their respective ERISA Affiliates in excess of
$30,000,000 during the term of this Agreement; or there shall exist any fact or
circumstance that reasonably could be expected to result in the imposition of a
Lien or security interest under Section 412(n) of the Internal Revenue
Code or under ERISA; or


 


8.11                        Change in Control.


 


A Change of Control shall
occur; or


 


8.12                        Repudiation of Obligations.


 


At any time after the
execution and delivery thereof, (i) the Guaranty for any reason, other
than the satisfaction in full of all Obligations, shall cease to be in full
force and effect (other than in accordance with its terms) or shall be declared
to be null and void or the Guarantor


 


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shall repudiate its
Obligations thereunder, (ii) this Agreement for any reason shall cease to
be in full force and effect (other than by reason of the satisfaction in full
of the Obligations) or shall be declared null and void, or (iii) any
Credit Party shall contest the validity or enforceability of any Loan Document,
or deny that it has any further liability under any Loan Document to which it
is a party;


 


THEN, (1) upon
the occurrence of any Event of Default described in Section 8.6 or 8.7,
automatically, and (2) upon the occurrence of any other Event of Default,
at the request of (or with the consent of) Requisite Lenders, upon notice to
the Borrower by the Administrative Agent, (A) the Commitments, if any, of
each Lender having such Commitments and the obligation of the Issuing Bank to
issue any Letter of Credit shall immediately terminate; (B) each of the
following shall immediately become due and payable, in each case without
presentment, demand, protest or other requirements of any kind, all of which
are hereby expressly waived by each Credit Party: (I) the unpaid principal
amount of and accrued interest on the Loans, (II) an amount equal to the
maximum amount that may at any time be drawn under all Letters of Credit then
outstanding (regardless of whether any beneficiary under any such Letter of Credit
shall have presented, or shall be entitled at such time to present, the drafts
or other documents or certificates required to draw under such Letters of
Credit), and (III) all other Obligations; provided the foregoing
shall not affect in any way the obligations of Lenders under Section 2.2E;
and (C) the Administrative Agent shall direct the Borrower to pay (and the
Borrower hereby agrees upon receipt of such notice, or upon the occurrence of
any Event of Default specified in Sections 8.6 and 8.7 to pay) to the
Administrative Agent such additional amounts of cash, to be held as security
for the Borrower’s reimbursement Obligations in respect of Letters of Credit
then outstanding, equal to the Letter of Credit Usage at such time.


 


SECTION 9.                            MISCELLANEOUS


 


9.1                               Assignments and Participations in Loans and Letters of Credit.


 


A.                                    Right to Assign. Each Lender shall have the right at any time
to sell, assign or transfer all or a portion of its rights and obligations
under this Agreement, including all or a portion of its Commitment or Loans
owing to it or other Obligation (provided, however, that each
such assignment shall be of a uniform, and not varying, percentage of all
rights and obligations under and in respect of Loans and its Commitment):
(i) to any Person meeting the criteria of clause (A) of the
definition of the term of “Eligible Assignee” or to any Approved Fund upon the
giving of notice to the Borrower and the Administrative Agent; and (ii) to
any Person meeting the criteria of clause (B) of the definition of the
term of “Eligible Assignee” and consented to by each of the Borrower and the
Administrative Agent (such consent not to be (x) unreasonably withheld or
delayed and, (y) in the case of the Borrower, required at any time an
Event of Default shall have occurred and then be continuing); provided  further
each such assignment pursuant to this Section 9.1A shall be in an
aggregate amount of not less than $5,000,000, which such amount shall be
reduced to $1,000,000 at any time an Event of Default shall have occurred and
be continuing (or such lesser amount as may be agreed to by the Borrower and
the Administrative Agent or as shall constitute the aggregate amount of the
Commitment and Loans of the assigning Lender).


 


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B.                                    Requirements. The assigning Lender and the assignee thereof shall
execute and deliver to the Administrative Agent an Assignment Agreement,
together with (i) a processing and recordation fee of $3,500, and
(ii) such forms, certificates or other evidence, if any, with respect to
United States federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Administrative Agent
pursuant to Section 2.8B(iii).


 


C.                                    Acceptance and Notice of Assignment. Upon its receipt of a duly
executed and completed Assignment Agreement, together with the processing and
recordation fee referred to in Section 9.1B (and any forms, certificates
or other evidence required by this Agreement in connection therewith), the
Administrative Agent shall record the information contained in such Assignment
Agreement in the Register, shall give prompt notice thereof to the Borrower and
shall maintain a copy of such Assignment Agreement.


 


D.                                    Representations and Warranties of Assignee. Each Lender,
upon execution and delivery hereof or upon executing and delivering an
Assignment Agreement, as the case may be, represents and warrants as of the
Effective Date or as of the applicable Effective Date (as defined in the
applicable Assignment Agreement) that (i) it is an Eligible Assignee;
(ii) it has experience and expertise in the making of or investing in
commitments or loans such as its Commitment or Loans, as the case may be; and
(iii) it will make or invest in, as the case may be, its Commitment or
Loans for its own account in the ordinary course of its business and without a
view to distribution of its Commitment or Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this Section 9.1, the
disposition of its Commitment or Loans or any interests therein shall at all
times remain within its exclusive control).


 


E.                                      Effect of Assignment. Subject to the terms and
conditions of this Section 9.1, as of the “Effective Date” specified in
the applicable Assignment Agreement: (i) the assignee thereunder shall
have the rights and obligations of a “Lender” hereunder to the extent such
rights and obligations hereunder have been assigned to it pursuant to such
Assignment Agreement and shall thereafter be a party hereto and a “Lender” for
all purposes hereof; (ii) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned thereby
pursuant to such Assignment Agreement, relinquish its rights (other than any
rights which survive the termination hereof under Section 9.9) and be
released from its obligations hereunder (and, in the case of an Assignment
Agreement covering all or the remaining portion of an assigning Lender’s rights
and obligations hereunder, such Lender shall cease to be a party hereto;
provided, anything contained in any of the Loan Documents to the contrary
notwithstanding, (y) the Issuing Bank shall continue to have all rights
and obligations thereof with respect to such Letters of Credit until the
cancellation or expiration of such Letters of Credit and the reimbursement of
any amounts drawn thereunder and (z) such assigning Lender shall continue
to be entitled to the benefit of all indemnities hereunder as specified herein
with respect to matters arising out of the prior involvement of such assigning
Lender as a Lender hereunder); (iii) the Commitments shall be modified to
reflect the Commitment of such assignee and any Commitment of such assigning
Lender, if any; and (iv) if any such assignment occurs after the issuance
of any Note to the assigning Lender, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its applicable Notes to the Administrative Agent for cancellation,
and thereupon the Credit Parties shall issue and deliver


 


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new Notes, if so requested
by the assignee and/or assigning Lender, to such assignee and/or to such
assigning Lender, with appropriate insertions, to evidence the Loans of the
assignee and/or the assigning Lender.


 


F.                                      Certain Other Permitted Assignments. In addition to any other
assignment permitted pursuant to this Section 9.1, any Lender may assign
and/or pledge all or any portion of its Loans, the other obligations owed by or
to such Lender, and its Letters of Credit, if any, to secure obligations of
such Lender including to any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any operating circular issued by such Federal Reserve Bank; provided
that no such assignment or pledge shall release any Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


G.                                    Participations. Each Lender shall have the right at any time
to sell one or more participations to any Person (other than the Credit
Parties, any of their Subsidiaries or any of their Affiliates) in all or any
part of its Commitment, Loans or other Obligations. The holder of any such
participation, other than an Affiliate of the Lender granting such
participation, shall not be entitled to require such Lender to take or omit to
take any action hereunder except with respect to any amendment, modification or
waiver that would (i) extend the final scheduled maturity of any Loan or
Note in which such participant is participating, or reduce the rate or extend
the time of payment of interest or fees thereon (except in connection with a
waiver of applicability of any post default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the
participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Event of Default or of a mandatory reduction in
the Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant’s
participation is not increased as a result thereof) or (ii) consent to the
assignment or transfer by any Credit Party of any of its rights and obligations
under this Agreement. The Credit Parties agree that each participant shall be
entitled to the benefits of Sections 2.9C and 2.8 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to
Section 9.1A; provided (i) a participant shall not be entitled
to receive any greater payment under Section 2.8 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such participant, unless the sale of the participation to such
participant is made with the applicable Credit Party’s prior written consent
and (ii) a participant that would be a Non-US Lender if it were a Lender
shall not be entitled to the benefits of Section 2.8B unless the
applicable Credit Party is notified of the participation sold to such
participant and such participant agrees, for the benefit of such Credit Party,
to comply with Section 2.8B as though it were a Lender. To the extent
permitted by law, each participant also shall be entitled to the benefits of
Section 9.5 as though it were a Lender, provided such participant agrees
to be subject to Section 9.19 as though it were a Lender.


 


9.2                               Expenses.


 


Whether or not the
transactions contemplated hereby shall be consummated, the Credit Parties agree
to pay promptly (i) all the actual and reasonable and documented costs and
out-of-pocket expenses of preparation of the Loan Documents; (ii) all the
reasonable and documented costs of furnishing all opinions by counsel for the
Credit Parties; (iii) the reasonable and


 


78

















 


documented fees,
out-of-pocket expenses and disbursements of a single U.S. counsel, a special
Canada counsel and a special Ireland counsel to the Lead Arrangers and the
Agents in connection with the negotiation, preparation and execution of the
Loan Documents and any other documents or matters requested by the Credit
Parties; (iv) all the actual, reasonable and documented costs and
out-of-pocket reasonable and documented fees, expenses and disbursements of any
auditors, accountants, consultants or appraisers; (v) all other actual and
reasonable and documented costs and out-of-pocket expenses incurred by each
Lead Arranger, the Administrative Agent and each Syndication Agent in
connection with the syndication of the Loans and the negotiation, preparation
and execution of the Loan Documents and the transactions contemplated thereby;
(vi) all actual, reasonable and documented costs and out-of-pocket
expenses incurred by the Administrative Agent in connection with any consents,
amendments, waivers or other modifications of the Loan Documents (including the
reasonable fees, out-of-pocket expenses and disbursements of counsel to the
Administrative Agent in connection therewith); and (vii) after the
occurrence of an Event of Default, all costs and expenses, including reasonable
and documented attorneys’ fees (including, without duplication, allocated costs
of internal counsel) and costs of settlement, incurred by any Agent or Lender
in enforcing any Obligations of or in collecting any payments due from the
Credit Parties hereunder or under the other Loan Documents by reason of such
Event of Default (including in connection with the sale of, collection from, or
other realization upon any collateral) or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a “work-out” or pursuant to any insolvency or bankruptcy cases or
proceedings.


 


9.3                               Indemnity.


 


A.                                    In addition to
the payment of expenses pursuant to Section 9.2, whether or not the transactions
contemplated hereby shall be consummated, the Credit Parties agree to defend
(subject to Indemnitees’ selection of counsel), indemnify, pay and hold
harmless each of the Lead Arrangers and Agents and each Lender, and the
respective partners, officers, directors, employees, agents, attorneys, and
affiliates of each of the Lead Arrangers and each of the Agents and each Lender
(collectively called the “Indemnitees”),
from and against any and all Indemnified Liabilities (as hereinafter defined); provided
that the Credit Parties shall not have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the extent such
Indemnified Liabilities arise from the gross negligence or willful misconduct
of that Indemnitee or any of its Affiliates as determined by a final judgment
of a court of competent jurisdiction. As used herein, “Indemnified Liabilities” means,
collectively, any and all liabilities, obligations, losses, damages (including
natural resource damages), penalties, actions, judgments, suits, claims
(including environmental claims), costs, expenses and disbursements of any kind
or nature whatsoever (including the reasonable and documented fees and
disbursements of counsel for Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Credit
Party or any other Person, whether or not any such Indemnitee shall be
designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the transactions
contemplated


 


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hereby or thereby (including
the Lenders’ agreements to make the Credit Extensions hereunder or the use or
intended use of the proceeds thereof, or any enforcement of any of the Loan
Documents (including the enforcement of the Guaranty)).


 


B.                                    To the extent
that the undertakings to defend, indemnify, pay and hold harmless set forth in
this Section 9.3 may be unenforceable in whole or in part because they
violate any law or public policy, the Credit Parties shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them.


 


C.                                    To the extent
permitted by applicable law, the Credit Parties and each of their Subsidiaries
shall not assert, and each hereby waives, any claim against the Lenders, the
Agents, the Lead Arrangers and their respective Affiliates, officers,
directors, employees, attorneys or agents, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) (whether or not the claim therefor is based on contract, tort
or duty imposed by any applicable legal requirement) arising out of, in
connection with, as a result of, or in any way related to, this Agreement or
any other Loan Document, or any agreement or instrument contemplated hereby or
thereby or referred to herein or therein, the transactions contemplated hereby
or thereby, any Loan or the use of the proceeds thereof or any act or omission or
event occurring in connection therewith, and the Credit Parties and each of its
Subsidiaries hereby waives, releases and agrees not to sue upon any such claim
or any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.


 


9.4                               Exception for Subsidiary Borrowers.


 


Notwithstanding the
foregoing, nothing in Sections 9.2 and 9.3 shall require a payment by a
Subsidiary Borrower if such payment would violate any Applicable Law or if any
Applicable Law would require minority shareholder approval, a valuation or a
discretionary order, provided that the Guarantor shall be liable for any
such payment referred to in this Section 9.4.


 


9.5                               Set-Off.


 


In addition to any rights
now or hereafter granted under applicable law and not by way of limitation of
any such rights, upon the occurrence and during the continuance of any Event of
Default, each of the Agents and each Lender (and each of their respective
Affiliates) is hereby authorized by the Credit Parties at any time or from time
to time subject, except in the case of an Event of Default under
Section 8.1, 8.6 or 8.7, to the consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed), without notice to the
Credit Parties or to any other Person, any such notice being hereby expressly
waived, to set-off and to appropriate and to apply any and all deposits
(general or special, including Indebtedness evidenced by certificates of
deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by such Agent or such Lender
(or such Affiliate), and any of their respective affiliates, as the case may
be, to or for the credit or the account of any Credit Party against and on
account of the obligations and liabilities of any Credit Party to such Agent or
such Lender under this Agreement and the other Loan Documents, including all
claims of any nature or description arising out of or connected with this
Agreement or any other Loan


 


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Document, irrespective of
whether or not (i) such Agent or such Lender shall have made any demand
hereunder or (ii) the principal of or the interest on the Loans or any
other amounts due hereunder shall have become due and payable pursuant to Section 8
and although said Obligations, or any of them, may be contingent or unmatured.


 


9.6                               Amendments and Waivers.


 


No amendment, modification,
termination or waiver of any provision of this Agreement or of any other Loan
Document, or consent to any departure by the Credit Parties therefrom, shall in
any event be effective without the written concurrence of the Requisite
Lenders; provided that no amendment, modification, termination, waiver
or consent shall, without the consent of each Lender: (i) extend the
scheduled final maturity of any Loan or Note; (ii) waive, reduce or
postpone any scheduled repayment (but not prepayment); (iii) reduce the
rate of interest on any Loan or any fee or other amount payable hereunder;
(iv) extend the time for payment of any such interest, fees or other
amounts; (v) extend the stated expiration date of any Letter of Credit
beyond the Maturity Date; (vi) reduce the principal amount of any Loan;
(vii) amend, modify, terminate or waive any provision of this
Section 9.6; (viii) amend, modify or replace the definition of “Requisite
Lenders” or “Pro Rata Share”, or any provision of this Agreement which would
alter the pro rata sharing of
payments required hereunder; (ix) consent to the assignment or transfer by
any Credit Party of any of its rights and obligations under this Agreement; or
(x) release the Guarantor from its Obligations under the Guaranty; provided
further that no such amendment, modification, termination or waiver of any
provision of the Loan Documents, or consent to any departure by any Credit
Party therefrom, shall: (1) increase the Commitments of any Lender over
the amount thereof then in effect without the consent of such Lender; or
(2) amend, modify, terminate or waive any provision of this Agreement as
the same applies to the rights or obligations of any Agent, in each case
without the consent of such Agent; provided still further, that (x) any
modification or supplement of the rights or duties of the Administrative Agent
shall require the consent of the Administrative Agent and (y) any
modification or supplement of the rights or duties of the Issuing Bank shall
require the consent of the Issuing Bank. The Administrative Agent may, but
shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle such Credit Party to any other or further
notice or demand in similar or other circumstances.


 


9.7                               Independence of Covenants.


 


All covenants hereunder
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of an Event of Default or Potential
Event of Default if such action is taken or condition exists.


 


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9.8                               Notices.


 


A.                                    Generally. Unless otherwise specifically provided herein, all
notices or other communications provided for hereunder between the Credit
Parties and any other Person party hereto shall be in writing (including
facsimile or electronic mail) and mailed, sent by overnight courier,
telecopied, e-mailed, or delivered to, in the case of each signatory to this
Agreement, at its address set forth on the signature pages hereto, or, as
to each party, at such other address or to such other person as shall be
designated by such party in a written notice to all other parties. Any notice,
request or demand to or upon the Borrower or any other Person party hereto
shall not be effective until received.


 


B.                                    Intralinks.


 


(i)                                     The Credit
Parties hereby agree that they will provide to the Administrative Agent all
information, documents and other materials that they are obligated to furnish
to the Administrative Agent pursuant to the Loan Documents, including all
notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a conversion of
an existing, borrowing or other Credit Extension (including any election of an
interest rate or interest period relating thereto), (ii) relates to the
payment of any principal or other amount due under this Agreement prior to the
scheduled date therefor, (iii) provides notice of any Potential Event of
Default or Event of Default or (iv) is required to be delivered to satisfy
any condition precedent to the effectiveness of this Agreement and/or any
borrowing or other Credit Extension hereunder (all such non-excluded
communications being referred to herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium in a format acceptable to the Administrative
Agent to oploanswebadmin@citigroup.com.  In
addition, the Credit Parties agree to continue to provide the Communications to
the Administrative Agent in the manner specified in the Loan Documents but only
to the extent requested by the Administrative Agent.


 


(ii)                                  The Credit
Parties further agree that the Administrative Agent may make the Communications
available to the Lenders by posting the Communications on Intralinks or a
substantially similar electronic transmission system (the “Platform”).


 


(iii)                            THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN
CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE
ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES
(COLLECTIVELY, “AGENT PARTIES”) HAVE ANY


 


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LIABILITY
TO THE CREDIT PARTIES, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF
ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING
OUT OF THE CREDIT PARTIES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF
COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY
AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT.


 


(iv)                              The
Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of the Loan Documents. Each Lender agrees that notice to it (as
provided in the next sentence) specifying that the Communications have been
posted to the Platform shall constitute effective delivery of the
Communications to such Lender for purposes of the Loan Documents. Each Lender
agrees to notify the Administrative Agent in writing (including by electronic
communication) from time to time of such Lender’s e-mail address to which the
foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address.


 


C.                                    Notices to Subsidiary Borrowers. Each Subsidiary Borrower
hereby designates the Borrower as its representative and agent on its behalf
for the purposes of giving and receiving all notices (other than Notices of
Borrowing) and any other documentation required to be delivered to it pursuant
to this Agreement and any other Loan Document by the Administrative Agent or
any Lender. The Borrower hereby accepts such appointment. The Agents and the
Lenders may regard any notice (other than Notices of Borrowing) or other
communication pursuant to any Loan Document from the Borrower as a notice or
communication from all borrowers, and may give any notice or communication
required or permitted to be given to any Subsidiary Borrower or Subsidiary
Borrowers hereunder to the Borrower on behalf of such Subsidiary Borrower or
Subsidiary Borrowers. Each Subsidiary Borrower agrees that each notice,
election, representation and warranty, covenant, agreement and undertaking made
on its behalf by the Borrower shall be deemed for all purposes to have been
made by such Subsidiary Borrower and shall be binding upon and enforceable
against such Subsidiary Borrower to the same extent as if the same had been
made directly by such Subsidiary Borrower.


 


9.9                               Survival of Representations, Warranties and Agreements.


 


A.                                    All
representations, warranties and agreements made herein shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.


 


B.                                    Notwithstanding
anything in this Agreement or implied by law to the contrary, the agreements of
the Credit Parties set forth in Sections 2.8, 2.9C, 9.2, 9.3 and 9.5 and the
agreements of Lenders set forth in Sections 9.19, 10.3C and 10.8 shall survive the
payment of the Loans and the termination of this Agreement.


 


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9.10                        Failure or Indulgence Not Waiver; Remedies Cumulative.


 


No failure or delay on the
part of any Lead Arranger, any Agent or any Lender in the exercise of any
power, right or privilege hereunder or under any other Loan Document shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof
or of any other power, right or privilege. The rights, powers and remedies
given to each Lead Arranger, each Agent and each Lender hereby are cumulative
and shall be in addition to and independent of all rights, powers and remedies
existing by virtue of any statute or rule of law or in any other Loan
Document. Any forbearance or failure to exercise, and any delay in exercising,
any right, power or remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it preclude the
further exercise of any such right, power or remedy.


 


9.11                        Marshalling; Payments Set Aside.


 


No Agent or Lender shall be
under any obligation to marshal any assets in favor of any Credit Party or any
other Person or against or in payment of any or all of the Obligations. To the
extent that any Credit Party makes a payment or payments to the Administrative
Agent or the Lenders (or to the Administrative Agent, on behalf of the Lenders)
or the Administrative Agent or the Lenders enforce any security interests or
exercises their rights of set-off, and such payment or payments or the proceeds
of such enforcement or set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or set-off had not occurred.


 


9.12                        Severability.


 


In case any provision in or
obligation under any Loan Document shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations of such Loan Document, the other Loan Documents or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.


 


9.13                        Headings.


 


Section and subsection
headings in this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose or
be given any substantive effect.


 


9.14                        Applicable Law.


 


THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


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9.15                        Successors and Assigns.


 


This Agreement shall be
binding upon the parties hereto and their respective successors and assigns and
shall inure to the benefit of the parties hereto and the successors and assigns
of the Lenders (it being understood that each Lender’s rights of assignment are
subject to Section 9.1). The Credit Parties may not assign or delegate its
rights or obligations hereunder or any interest therein without the prior
written consent of each Lender. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Indemnitees, and Affiliates of each
of the Agents and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.


 


9.16                        Consent to Jurisdiction and Service of Process.


 


ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST THE CREDIT PARTIES ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, IRREVOCABLY


 


(I)                                    ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;


 


(II)                                WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS;


 


(III)                            AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH CREDIT PARTY AT ITS ADDRESS SET FORTH ON THE SIGNATURE PAGES
HERETO;


 


(IV)                           AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT
TO CONFER PERSONAL JURISDICTION OVER SUCH CREDIT PARTY IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT;


 


(V)                               AGREES THAT EACH AGENT AND EACH LENDER RETAINS THE RIGHT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION; AND


 


(VI)                           AGREES THAT THE PROVISIONS OF THIS SECTION 9.16 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.


 


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9.17                        Waiver of Jury Trial.


 


EACH OF THE
PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law
and statutory claims. Each party hereto acknowledges that this waiver is a
material inducement to enter into a business relationship, that each has
already relied on this waiver in entering into this Agreement, and that each
will continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 9.17 AND EXECUTED BY
EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THE LOANS MADE HEREUNDER. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.


 


9.18                        Confidentiality.


 


Each Agent and Lender shall
hold all confidential, proprietary or non-public information regarding the
Credit Parties and their respective Subsidiaries and their respective
businesses which has been identified as confidential by any such Credit Party
and obtained pursuant to the requirements of this Agreement in accordance with
such Agent’s or Lender’s customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices, it being understood and agreed by the Credit Parties that in any
event each Lender may make disclosures (i) to Affiliates of such Agent or
Lender and the directors, officers, employees, agents, advisors and other
representatives of such Agent or Lender and their Affiliates (and to other
persons authorized by an Agent or Lender to organize, present or disseminate
such information in connection with disclosures otherwise made in accordance
with this Section 9.18) and to third party settlement providers or third
parties who provide administrative services to such Agent or Lender;
(ii) reasonably required by any bona fide or potential assignee, transferee
or participant in connection with the contemplated assignment, transfer or
participation by any Lender of its Loans or any interest therein; (iii) to
any rating agency when required by it, provided that, prior to any
disclosure, such rating agency shall undertake in writing to preserve the
confidentiality of any confidential information relating to the Credit Parties
or their Subsidiaries received by it from any of the Agents or any Lender;
(iv) required or requested by any Governmental Authority or representative
thereof; provided that unless specifically prohibited by applicable law,
court order or similar regulatory process, each


 


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Agent and Lender shall make
reasonable efforts to notify the Credit Parties of any request by any
Governmental Authority or representative thereof (other than any such request
in connection with any examination of the financial condition or other routine
examination of such Agent or Lender by such Governmental Authority) for
disclosure of any such non-public information prior to disclosure of such
information; (v) to any other party hereto; (vi) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder; (vii) to any actual or
prospective party (or its managers, administrators, trustees, partners,
directors, officers, employees, agents, advisors and other representatives) to
any swap, derivative or other transaction under which payments are to be made
by reference to any Credit Party and its Obligations, this Agreement or
payments hereunder; (viii) with the consent of the applicable Credit
Party; or (ix) to the extent such information (x) becomes publicly
available other than as a result of a breach of this Section 9.18 or
(y) becomes available to any Agent, any Lender or their respective
Affiliates on a nonconfidential basis from a source other than the Credit
Parties so long as such Agent, such Lender or such Affiliate does not have
knowledge that such source has an obligation to any Credit Party to keep such
information confidential; provided that in no event shall any Agent or
Lender be obligated or required to return any materials furnished by any Credit
Party or any of its Subsidiaries.


 


9.19                        Ratable Sharing.


 


The Lenders hereby agree
among themselves that, subject to Section 2.11 in the case of a Defaulting
Lender, if any of them shall, whether by voluntary payment (other than a
voluntary prepayment of Loans made and applied in accordance with the terms
hereof), through the exercise of any right of set-off or banker’s lien, by
counterclaim or cross action or by the enforcement of any right under the Loan Documents
or otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of facility
fees or commitment fees and other amounts then due and owing to such Lender
hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender),
which is greater than the proportion received by any other Lender in respect to
of the Aggregate Amounts Due to such other Lender, then the Lender receiving
such proportionately greater payment shall (i) notify the Administrative
Agent of the receipt of such payment and (ii) apply a portion of such
payment to purchase (for cash at face value) participations (which it shall be
deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment), or such other
adjustments as shall be equitable, in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by
all Lenders in proportion to the Aggregate Amounts Due to them; provided
that, if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy
or reorganization of any Credit Party or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. The Credit Parties and each of their Subsidiaries expressly
consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker’s lien,
set-off or counterclaim with respect to any and all monies owing by the Credit
Parties or any of their Subsidiaries to that holder with respect thereto as
fully as if that holder were owed the amount of the participation held by that
holder.


 


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9.20                        Counterparts; Effectiveness.


 


This Agreement and any
amendments, waivers, consents or supplements hereto or in connection herewith
may be executed in any number of counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and receipt by the Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.


 


9.21                        Obligations Several; Independent Nature of Lenders’ Rights.


 


The obligations of the
Lenders hereunder are several and no Lender shall be responsible for the
obligations or Commitment of any other Lender hereunder. Nothing contained
herein or in any other Loan Document, and no action taken by the Lenders
pursuant hereto or thereto, shall be deemed to constitute the Lenders as a partnership,
an association, a joint venture or any other kind of entity. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.


 


9.22                        Usury Savings Clause.


 


Notwithstanding any other
provision herein, the aggregate interest rate charged with respect to any of
the Obligations, including all charges or fees in connection therewith deemed
in the nature of interest under applicable law shall not exceed the Highest
Lawful Rate. As used herein, “Highest Lawful
Rate” means the maximum lawful interest rate, if any, that at any
time or from time to time may be contracted for, charged, or received under the
laws applicable to any Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws now
allow. If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the
outstanding amount of the Loans made hereunder shall bear interest at the
Highest Lawful Rate until the total amount of interest due hereunder equals the
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total
interest due hereunder (taking into account the increase provided for above) is
less than the total amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect, then to the extent permitted by law, the Credit Parties shall pay to
the Administrative Agent an amount equal to the difference between the amount
of interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Credit Parties to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts
for, charges, or receives any consideration which constitutes interest in
excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender’s option be applied
to the outstanding amount of the Loans made hereunder or be refunded to the
Credit Parties.


 


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9.23                        Judgment Currency.


 


The obligation of the Credit
Parties to make payments of the principal of and interest on the Obligations in
the currency specified for such payment shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any other currency, except to the extent that such tender or
recovery shall result in the actual receipt by the Administrative Agent or the
applicable Lender of the full amount of the particular currency expressed to be
payable pursuant to the applicable Loan Document. The Administrative Agent
shall, using all amounts obtained or received from the applicable Credit Party
pursuant to any such tender or recovery in payment of principal of and interest
on the Obligations, promptly purchase the applicable currency at the most
favorable spot exchange rate determined by the Administrative Agent to be
available to it. The obligation of the Credit Parties to make payments in the
applicable currency shall be enforceable as an alternative or additional cause
of action solely for the purpose of recovering in the applicable currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the currency expressed to be payable pursuant to the applicable Loan
Document.


 


9.24                        Termination of Existing Credit Agreement.


 


The Borrower and each of the
Lenders that is also a “Lender” party to the Credit Agreement and Guaranty
dated as of December 16, 2005, as amended on January 15, 2007, among the
Borrower, the lenders party thereto and Citicorp North America, Inc., as
administrative agent (the “Existing Credit
Agreement”), agrees that the “Commitments” as defined in the
Existing Credit Agreement shall be terminated in their entirety on the
Effective Date in accordance with the terms thereof. Each of such Lenders
waives any requirement of notice of such termination pursuant to
Section II of the Existing Credit Agreement.


 


9.25                        No Fiduciary Duty.


 


Each Agent, each Lender and
their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that
conflict with those of the Borrower, its stockholders and/or its affiliates.
The Borrower agrees that nothing in the Loan Documents or otherwise will be
deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between any Lender, on the one hand, and the Borrower, its
stockholders or its affiliates, on the other. The Credit Parties acknowledge
and agree that (i) the transactions contemplated by the Loan Documents
(including the exercise of rights and remedies hereunder and thereunder) are
arm’s-length commercial transactions between the Lenders, on the one hand, and
the Borrower, on the other, and (ii) in connection therewith and with the
process leading thereto, (x) no Lender has assumed an advisory or
fiduciary responsibility in favor of the Borrower, its stockholders or its
Affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading
thereto (irrespective of whether any Lender has advised, is currently advising
or will advise the Borrower, its stockholders or its Affiliates on other
matters) or any other obligation to the Borrower except the obligations
expressly set forth in the Loan Documents and (y) each Lender is acting
solely as principal and not as the agent or fiduciary of the Borrower, its
management, stockholders, creditors or any other Person. The Borrower
acknowledges and agrees that the Borrower has consulted its own legal and
financial advisors to the extent it deemed appropriate


 


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and that it is responsible
for making its own independent judgment with respect to such transactions and
the process leading thereto. The Borrower agrees that it will not claim that
any Lender has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Borrower, in connection with such transaction
or the process leading thereto.


 


SECTION 10.                     AGENTS


 


10.1                        Authorization and Authority.


 


Each Lender hereby
irrevocably appoints Citibank to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The
provisions of this Section 10 are solely for the benefit of the
Administrative Agent and the Lenders, and neither the Borrower nor any other Credit
Party shall have rights as a third party beneficiary of any of such provisions.


 


10.2                        Agent Individually.


 


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


 


(b)                                 Each Lender
understands that the Person serving as Administrative Agent, acting in its
individual capacity, and its Affiliates (collectively, the “Agent’s Group”) are engaged in a wide range
of financial services and businesses (including investment management,
financing, securities trading, corporate and investment banking and research)
(such services and businesses are collectively referred to in this
Section 10.2 as “Activities”)
and may engage in the Activities with or on behalf of one or more of the Credit
Parties or their respective Affiliates. Furthermore, the Agent’s Group may, in
undertaking the Activities, engage in trading in financial products or
undertake other investment businesses for its own account or on behalf of
others (including the Credit Parties and their Affiliates and including
holding, for its own account or on behalf of others, equity, debt and similar
positions in the Borrower or another Credit Party or their respective
Affiliates), including trading in or holding long, short or derivative
positions in securities, loans or other financial products of one or more of
the Credit Parties or their Affiliates. Each Lender understands and agrees that
in engaging in the Activities, the Agent’s Group may receive or otherwise
obtain information concerning the Credit Parties or their Affiliates (including
information concerning the ability of the Credit Parties to perform their
respective obligations hereunder and under the other Loan Documents) which
information may not be available to any of the Lenders that are not members of
the Agent’s Group. None of the Administrative Agent nor any member of the Agent’s
Group shall have any duty to disclose


 


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to any Lender or use on
behalf of the Lenders, and shall not be liable for the failure to so disclose
or use, any information whatsoever about or derived from the Activities or
otherwise (including any information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any Credit Party
or any Affiliate thereof) or to account for any revenue or profits obtained in
connection with the Activities, except that the Administrative Agent shall
deliver or otherwise make available to each Lender such documents as are
expressly required by any Loan Document to be transmitted by the Administrative
Agent to the Lenders.


 


(c)                                  Each Lender
further understands that there may be situations where members of the Agent’s Group
or their respective customers (including the Credit Parties and their
Affiliates) either now have or may in the future have interests or take actions
that may conflict with the interests of any one or more of the Lenders
(including the interests of the Lenders hereunder and under the other Loan
Documents). Each Lender agrees that no member of the Agent’s Group is or shall
be required to restrict its activities as a result of the Person serving as
Administrative Agent being a member of the Agent’s Group, and that each member
of the Agent’s Group may undertake any Activities without further consultation
with or notification to any Lender. None of (i) this Agreement nor any
other Loan Document, (ii) the receipt by the Agent’s Group of information
concerning the Credit Parties or their Affiliates (including information
concerning the ability of the Credit Parties to perform their respective
obligations hereunder and under the other Loan Documents) nor (iii) any
other matter shall give rise to any fiduciary, equitable or contractual duties
(including without limitation any duty of trust or confidence) owing by the
Administrative Agent or any member of the Agent’s Group to any Lender including
any such duty that would prevent or restrict the Agent’s Group from acting on
behalf of customers (including the Credit Parties or their Affiliates) or for
its own account.


 


10.3                        Duties of Agent; Exculpatory Provisions.


 


A.                                    Powers; Duties Specified. The Administrative Agent’s
duties hereunder and under the other Loan Documents are solely ministerial and
administrative in nature and the Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Administrative
Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, but shall be required to act or refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
written direction of the Requisite Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that the Administrative Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent or any of its Affiliates to liability or that
is contrary to any Loan Document or applicable law.


 


B.                                    No Responsibility for Certain Matters. The Administrative Agent
shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Requisite Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 9.6 or Section 8) or (ii) in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Event of Default or Potential Event of
Default or the event or events that give or may give rise to any


 


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Event of Default or
Potential Event of Default unless and until the Borrower or any Lender shall
have given notice to the Administrative Agent describing such Event of Default
or Potential Event of Default and such event or events.


 


C.                                    Exculpatory Provisions. Neither the Administrative
Agent nor any member of the Agent’s Group shall be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty,
representation or other information made or supplied in or in connection with
this Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith or the adequacy, accuracy and/or completeness
of the information contained therein, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth
herein or therein or the occurrence of any Event of Default or Potential Event
of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or the perfection or priority of any Lien or security
interest created or purported to be created hereby or (v) the satisfaction
of any condition set forth in Section 3 or elsewhere herein, other than
(but subject to the foregoing clause (ii)) to confirm receipt of items
expressly required to be delivered to the Administrative Agent.


 


D.                                    “Know Your Customer”. Nothing in this Agreement or
any other Loan Document shall require the Administrative Agent or any of its
Related Parties to carry out any “know your customer” or other checks in
relation to any person on behalf of any Lender and each Lender confirms to the
Administrative Agent that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in relation to
such checks made by the Administrative Agent or any of its Related Parties.


 


10.4                        Reliance by Agent.


 


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


 


92

















 


10.5                        Delegation of Duties.


 


The Administrative Agent may
perform any and all of its duties and exercise its rights and powers hereunder
or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. Each such sub-agent and
the Related Parties of the Administrative Agent and each such sub-agent shall
be entitled to the benefits of all provisions of this Section 10 and Section 9.3 (as though such sub-agents were the “Agent”
under the Loan Documents) as if set forth in full herein with respect thereto.


 


10.6                        Resignation of Agent.


 


(a) The Administrative
Agent may at any time give notice of its resignation to the Lenders and the
Borrower and the Administrative Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered
to the Credit Parties and the Administrative Agent and signed by the Requisite
Lenders. Upon receipt of any such notice of resignation or such removal, the
Requisite Lenders shall have the right, with, so long as no Potential Event of
Default or Event of Default exists, the consent of the Borrower (which consent
shall not be unreasonably withheld or delayed), upon five (5) Business
Days’ notice to the Credit Parties, to appoint a successor, which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank
with an office in New York, New York. If no such successor shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation or is removed by the Requisite Lenders (such 30-day period, the “Lender Appointment Period”), then the
retiring Administrative Agent may on behalf of the Lenders, with, so long as no
Potential Event of Default or Event of Default exists, the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed), upon
five (5) Business Days’ notice to the Credit Parties, appoint a successor
Administrative Agent meeting the qualifications set forth above. In addition
and without any obligation on the part of the retiring Administrative Agent to
appoint, on behalf of the Lenders, a successor Administrative Agent, the
retiring Administrative Agent may at any time upon or after the end of the
Lender Appointment Period notify the Borrower and the Lenders that no
qualifying Person has accepted appointment as successor Administrative Agent
and the effective date of such retiring Administrative Agent’s resignation or
removal. Upon the resignation or removal effective date established in such
notice and regardless of whether a successor Administrative Agent has been
appointed and accepted such appointment, the retiring Administrative Agent’s
resignation or removal shall nonetheless become effective and (i) the
retiring Administrative Agent shall be discharged from its duties and
obligations as Administrative Agent hereunder and under the other Loan
Documents and (ii) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender directly, until such time as the Requisite Lenders
appoint a successor Administrative Agent as provided for above in this
paragraph. Upon the acceptance of a successor’s appointment as Administrative
Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties as Administrative Agent of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations as
Administrative Agent hereunder or under the other Loan Documents (if not
already discharged


 


93

















 


therefrom as provided above
in this paragraph). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
retiring Administrative Agent’s resignation or removal hereunder and under the
other Loan Documents, the provisions of this Section 10 and
Section 9.3 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.


 


(b)                                 Upon any
resignation or removal pursuant to this Section of a Person acting as
Administrative Agent and the appointment of a replacement Issuing Bank, unless
such Person shall notify the Borrower and the Lenders otherwise, such Person
and its Affiliates shall be relieved of any obligation to advance or issue new,
or extend existing, Letters of Credit where such issuance or extension is to
occur on or after the effective date of such resignation or removal and
appointment. Upon the acceptance of a successor’s appointment as Issuing Bank
hereunder, (i) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring Issuing Bank,
(ii) the retiring Issuing Bank shall be discharged from all of its duties
and obligations hereunder or under the other Loan Documents and (iii) the
successor Issuing Bank shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangement satisfactory to the retiring Issuing Bank to effectively
assume the obligations of the retiring Issuing Bank with respect to such
Letters of Credit.


 


10.7                        Non-Reliance on Administrative Agent and Other Lenders.


 


(a)                                  Each Lender
confirms to the Administrative Agent, each other Lender and each of their respective
Related Parties that it (i) possesses (individually or through its Related
Parties) such knowledge and experience in financial and business matters that
it is capable, without reliance on the Administrative Agent, any other Lender
or any of their respective Related Parties, of evaluating the merits and risks
(including tax, legal, regulatory, credit, accounting and other financial
matters) of (x) entering into this Agreement, (y) making Loans and
other extensions of credit hereunder and under the other Loan Documents and
(z) in taking or not taking actions hereunder and thereunder, (ii) is
financially able to bear such risks and (iii) has determined that entering
into this Agreement and making Loans and other extensions of credit hereunder
and under the other Loan Documents is suitable and appropriate for it.


 


(b)                                 Each Lender
acknowledges that (i) it is solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with this Agreement and the other Loan Documents, (ii) that it
has, independently and without reliance upon the Administrative Agent, any
other Lender or any of their respective Related Parties, made its own appraisal
and investigation of all risks associated with, and its own credit analysis and
decision to enter into, this Agreement based on such documents and information,
as it has deemed appropriate and (iii) it will, independently and without
reliance upon the Administrative Agent, any other Lender or any of their respective
Related Parties, continue to be solely responsible for making its own appraisal
and investigation of all risks arising under or in connection with, and its own
credit analysis and decision to take or not take action under, this


 


94

















 


Agreement and the other Loan
Documents based on such documents and information as it shall from time to time
deem appropriate, which may include, in each case:


 


(i)                                     the financial
condition, status and capitalization of the Borrower and each other Credit
Party;


 


(ii)                                  the legality,
validity, effectiveness, adequacy or enforceability of this Agreement and each
other Loan Document and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any Loan
Document;


 


(iii)                               determining
compliance or non-compliance with any condition hereunder to the making of a
Loan, or the issuance of a Letter of Credit and the form and substance of all
evidence delivered in connection with establishing the satisfaction of each
such condition;


 


(iv)                              the adequacy,
accuracy and/or completeness of the information delivered by the Administrative
Agent, any other Lender or by any of their respective Related Parties under or
in connection with this Agreement or any other Loan Document, the transactions
contemplated hereby and thereby or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Loan Document.


 


10.8                        Right to Indemnity.


 


Each Lender, in proportion
to its Pro Rata Share, severally agrees to indemnify each Agent, to the extent
that such Agent shall not have been reimbursed by the Credit Parties to the
full extent required by this Agreement or any other Loan Document, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Agent in exercising its
powers, rights and remedies or performing its duties hereunder or under the
other Loan Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Loan Documents; provided
that (a) no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent’s gross negligence or
willful misconduct and (b) no Lender shall be liable for the payment of
any portion of an Indemnified Liability pursuant to this Section 10.8
unless such Indemnified Liability was incurred by such Agent in its capacity as
such or by another Person acting for such Agent in such capacity. If any
indemnity furnished to any Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.


 


10.9                        Agents Under Guaranty.


 


Each Lender hereby
authorizes the Administrative Agent on behalf of and for the benefit of the
Lenders, to be the agent for and representative of the Lenders with respect to
the Guaranty.


 


95

















 


10.10                 No Other Duties, etc.


 


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


 


SECTION 11.                     SUBSIDIARY BORROWERS


 


11.1                        Joinder of Subsidiary Borrowers.


 


The obligations of the
Lenders to make Loans to any Subsidiary Borrower on or after the Effective Date
are subject to the satisfaction of the following conditions by such Subsidiary
Borrower:


 


A.                                    Joinder Agreement. The Subsidiary Borrower requesting such Loan
shall deliver or cause to be delivered to the Administrative Agent on behalf of
each Lender a Joinder Agreement duly executed by such Subsidiary Borrower (and
the other parties thereto).


 


B.                                    Approval by Lenders. In the case of any Subsidiary Borrower
other than the Bahamian Subsidiary, the Canadian Subsidiary and the Irish
Subsidiary, all Lenders shall have approved the addition of such Subsidiary
Borrower as a party hereto.


 


C.                                    Organizational Documents. The Subsidiary Borrower
requesting such Loan shall deliver or cause to be delivered to the
Administrative Agent on behalf of each Lender the following:


 


(i)                                     If requested by
any Lender, an originally executed Note substantially in the form of Annex A to
the Joinder Agreement to evidence such Lender’s Loans to such Subsidiary
Borrower;


 


(ii)                                  copies of the
Organizational Documents, dated a recent date, certified as of such date (or a
recent date prior thereto) by the appropriate governmental official or the
secretary (or other appropriate officer) of such Subsidiary Borrower, as
applicable;


 


(iii)                               resolutions of
the board of directors (or similar governing body) of such Subsidiary Borrower
approving and authorizing the execution, delivery and performance of the Loan
Documents to which it is a party and certified as of the Joinder Date by the
secretary (or other appropriate officer) of such Subsidiary Borrower as being
in full force and effect without modification or amendment;


 


(iv)                              signature and
incumbency certificates of the officers of such Subsidiary Borrower executing
the Loan Documents to which it is a party on behalf of such Subsidiary
Borrower;


 


(v)                                 a good standing
certificate or certificate of existence, as applicable, from the Secretary of
State (or similar official) from the jurisdiction of formation of such
Subsidiary


 


96

















 


Borrower, certified as of
the Effective Date (or a recent date prior to the Effective Date) (the matters
referenced in subsections 11C(ii)-(v) to be addressed in a secretary’s
certificate substantially in the form of Exhibit VII);


 


(vi)                              an officer’s
certificate from an officer of such Subsidiary Borrower substantially in the
form of Exhibit VIII, in form and substance satisfactory to the
Administrative Agent, to the effect that all representations and warranties
contained in this Agreement and the other Loan Documents are true, correct and
complete; that the Borrower and its Subsidiaries are not in violation of any of
the covenants contained in this Agreement and the other Loan Documents; that no
Event of Default or Potential Event of Default exists; and that such Subsidiary
Borrower has satisfied each of the conditions to effectiveness set forth in
this Section 11; and


 


(vii)                           such other
documents as the Administrative Agent on behalf of the Lenders may reasonably
request.


 


D.                                    Opinions of Counsel. The Administrative Agent
shall have received (i) originally executed copies of one or more
favorable written opinions of (x) special New York counsel for such
Subsidiary Borrower and (y) counsel for such Subsidiary Borrower in the
jurisdiction of its organization and (ii) any additional legal opinions
reasonably requested by the Administrative Agent, each in form and substance
reasonably satisfactory to the Administrative Agent and its counsel, dated as
of the Joinder Date.


 


E.                                      Payment of Amounts Due. The Subsidiary Borrower
requesting such Loan shall have paid to the Administrative Agent all reasonable
out-of-pocket costs, fees and
expenses (including reasonable and documented legal fees and expenses of a
single U. S. counsel and of a single counsel in the jurisdiction of
organization of such Subsidiary Borrower) incurred by the Administrative Agent
in connection with the negotiation, preparation and execution of a Joinder Agreement
and the transactions contemplated by the joinder of such Subsidiary Borrower as
a Credit Party hereunder.


 


F.                                      Authorizations and Consents.


 


(i)                                     The Subsidiary
Borrower requesting such Loan shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary in connection with the transactions contemplated by the Loan
Documents, and each of the foregoing shall be in full force and effect and in
form and substance reasonably satisfactory to the Administrative Agent and the
Lenders. All applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority which would restrain,
prevent or otherwise impose material adverse conditions on the transactions
contemplated by the Loan Documents or the financing thereof and no action,
request for stay, petition for review or rehearing, reconsideration, or appeal
with respect to any of the foregoing shall be pending, and the time for any
applicable agency to take action to set aside its consent on its own motion
shall have expired.


 


(ii)                                  Each of the
Lenders shall have received, at least two (2) Business Days in advance of
the Effective Date, all documentation and other information required by


 


97

















 


Governmental Authorities
under applicable “know-your-customer” and anti-money laundering rules and
regulations, including as required by the Patriot Act.


 


11.2                      Termination of Status as Subsidiary Borrower.


 


The Borrower may, at any time
that any Subsidiary Borrower has no outstanding Loans (and no requests for
Loans) hereunder, terminate such Subsidiary’s status as a Subsidiary Borrower
by notice to the Administrative Agent (which shall promptly advise each
Lender). Upon receipt of such notice by the Administrative Agent, such
Subsidiary shall cease to be a Subsidiary Borrower (and may not become a
Subsidiary Borrower again without satisfaction of the requirements set forth in
Section 11.1).


 


[Remainder of page intentionally left blank]


 


98
















 


SCHEDULE 2.1A


 


(Lenders’ Commitments and Pro Rata Shares)


 


	
   

  	
   

  	
  Revolving

  	
   

  	
   

  	
   

  
	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro Rata Share

  	
   

  
	
  Citibank,
  N.A.

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  8.57

  	
  %

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  8.57

  	
  %

  
	
  Morgan
  Stanley Bank, N.A.

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  8.57

  	
  %

  
	
  Bank
  of America, N.A.

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  8.57

  	
  %

  
	
  Goldman
  Sachs Lending Partners LLC

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  8.57

  	
  %

  
	
  The
  Bank of Tokyo-Mitsubishi UFJ, Ltd., Chicago Branch

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  8.57

  	
  %

  
	
  US
  Bank National Association

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  8.57

  	
  %

  
	
  Wachovia
  Bank, N.A., a Wells Fargo Company

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  8.57

  	
  %

  
	
  JPMorgan
  Chase Bank, N.A.

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  6.43

  	
  %

  
	
  Bank
  of China, New York Branch

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  5.00

  	
  %

  
	
  Bank
  of the West, a California Banking Corporation

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  5.00

  	
  %

  
	
  Bank
  of Montreal

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  5.00

  	
  %

  
	
  The
  Northern Trust Company

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  5.00

  	
  %

  
	
  National
  City Bank

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  5.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  700,000,000

  	
   

  	
  100.00

  	
  %

  



 


99
















 


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


 


	
   

  	
  HOSPIRA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lori O. Carlson

  
	
   

  	
  Name:

  	
  Lori O. Carlson

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  275 N. Field Drive,
  Building H1- 2nd floor

  
	
   

  	
  Lake Forest, IL 60045

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Tel: (224) 212-2668

  
	
   

  	
  Fax: (224) 212-3284

  
	
   

  	
  email:lori.carlson@hospira.com

  



 

















 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  as Lender and
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin A. Ege

  
	
   

  	
  Name:

  	
  Kevin A. Ege

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  390 Greenwich Street

  
	
   

  	
  New York, NY 10013

  
	
   

  	
  Attention: William E.
  Clark

  
	
   

  	
  Tel: (212) 816-8183

  
	
   

  	
  Fax: (212) 816-8051

  
	
   

  	
  email

  



 

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William McGinty

  
	
   

  	
  Name: William McGinty

  
	
   

  	
  Title: SVP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  540 West Madison
  Street, Suite 2100

  
	
   

  	
  Chicago, IL 60661

  
	
   

  	
  Attention: Loan
  Administration

  
	
   

  	
  Tel: (312) 992-5150

  
	
   

  	
  Fax: (312) 992-5155

  



 

















 


	
   

  	
  MORGAN STANLEY BANK, N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dawn D. Clark

  
	
   

  	
  Name:

  	
  Dawn D. Clark

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  One Utah Center

  
	
   

  	
  201 South Main Street,
  5th Floor

  
	
   

  	
  Salt Lake City, UT
  84111

  
	
   

  	
  Attention: Carrie D.
  Johnson

  
	
   

  	
  Tel: (801) 236-3655

  
	
   

  	
  Fax: (718) 233-0967

  
	
   

  	
  email:
  docs4loans@ms.com

  



 


4

















 


	
   

  	
  BANK OF AMERICA, NA., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jill J. Hogan

  
	
   

  	
  Name:

  	
  Jill J. Hogan

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  2001 Clayton Road, 2nd Floor

  
	
   

  	
  Concord, CA 94520

  
	
   

  	
  Attention: Brian
  Graybill

  
	
   

  	
  Tel: 925.675.8414

  
	
   

  	
  Fax: 888.969.9147

  
	
   

  	
  email:

  



 


5

















 


	
   

  	
  GOLDMAN SACHS LENDING PARTNERS
  LLC, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mack Walton

  
	
   

  	
  Name:

  	
  Mack Walton

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
  30 Hudson Street, 36th Floor

  
	
   

  	
  Jersey City, NJ 07302

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention: Allison
  O’Connor

  
	
   

  	
  Tel: 212-902-8497

  
	
   

  	
  Fax: 646-769-7700

  



 


6

















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI
  UFJ, LTD., as
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Victor Pierzchalski

  
	
   

  	
  Name:

  	
  Victor Pierzchalski

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The Bank of
  Tokyo-Mitsubishi UFJ, Ltd.

  
	
   

  	
  227 W. Monroe St.,
  Suite 1550

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
  Attention: Corporate
  Banking—Ms. Diane Tkach

  
	
   

  	
  Tel: (312) 696-4663

  
	
   

  	
  Fax: (312) 696-4535

  
	
   

  	
  email:
  dtkach@us.mufg.jp

  



 

















 


	
   

  	
  US BANK NATIONAL ASSOCIATION, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory M. Ratliff

  
	
   

  	
  Name:

  	
  Gregory M. Ratliff

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:  461 Fifth Ave, 7th Floor 

  
	
   

  	
                              New
  York, NY 10017-6237

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention: Christopher Kordes

  
	
   

  	
  Tel: 646.935.4905

  
	
   

  	
  Fax: 646.935.4534

  
	
   

  	
  email:
  christopher.kordes@usbank.com

  



 

















 


	
   

  	
  WACHOVIA BANK, N.A., A WELLS
  FARGO 

  
	
   

  	
  COMPANY, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Scott Santa Cruz

  
	
   

  	
  Name:

  	
  Scott Santa Cruz

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  7711 Plantation Rd. VA
  7629

  
	
   

  	
  Roanoke, VA 24019

  
	
   

  	
  Attention: Commercial Loan
  Services

  
	
   

  	
  Tel: (336) 735-2200
  Opt. 4, Opt. 1

  
	
   

  	
  Fax: (704) 715-0099

  
	
   

  	
  email:
  specializedloans@wachovia.com

  



 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert S. Sheppard

  
	
   

  	
  Name:

  	
  Robert S. Sheppard

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
  Tel:

  
	
   

  	
  Fax:

  
	
   

  	
  email:

  



 

















 


	
   

  	
  BANK OF CHINA NEW YORK BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William Warren
  Smith

  
	
   

  	
  Name:

  	
  William Warren Smith

  
	
   

  	
  Title:

  	
  Chief Lending Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:  410 Madison Ave

  
	
   

  	
                              New
  York, NY 10017

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Peggy Wang

  
	
   

  	
  Tel:

  	
  212.9353101 Ext. 351

  
	
   

  	
  Fax:

  	
  212.3084993

  
	
   

  	
  email:

  	
  pwang@bocusa.com

  
				



 

















 


	
   

  	
  BANK OF THE WEST, a California Banking

  
	
   

  	
  Corporation, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Wang

  
	
   

  	
  Name:

  	
  David Wang

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:  250
  Marquette Ave, Ste 575

  
	
   

  	
                              Minneapolis,
  MN 55401

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  David Wang

  
	
   

  	
  Tel:

  	
  612-339-1403

  
	
   

  	
  Fax:

  	
  612-339-6362

  
	
   

  	
  email:

  	
  david.wang@bankofthewest.com

  
				



 






 












 


	
   

  	
  BANK OF MONTREAL, as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Geraldine Rudig

  
	
   

  	
  Name:

  	
  Geraldine Rudig

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  115 South LaSalle
  Street, 18 West

  
	
   

  	
  Chicago, IL 60603

  
	
   

  	
  Attention: Geraldine
  Rudig

  
	
   

  	
  Tel: (312) 461-3139

  
	
   

  	
  Fax: (312) 293-4060

  
	
   

  	
  email:
  geraldine.rudig@bmo.com

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF MONTREAL IRELAND PLC, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Neil Ward

  
	
   

  	
  Name:

  	
  Neil Ward

  
	
   

  	
  Title:

  	
  General Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Finbarr Farrell

  
	
   

  	
  Name:

  	
  Finbarr Farrell

  
	
   

  	
  Title:

  	
  Risk & Credit
  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  6th Floor, 2
  Harbourmaster Place

  
	
   

  	
  IFSC, Dublin 1, Ireland

  
	
   

  	
  Attention: Finbarr
  Farrell

  
	
   

  	
  Tel: 353 1 614 7804

  
	
   

  	
  Fax: 353 1 614 7819

  
	
   

  	
  email:
  finbarr.farrell@bmo.com

  



 

















 


	
   

  	
  BANK OF MONTREAL, as Canadian Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sean Gallaway

  
	
   

  	
  Name:

  	
  Sean Gallaway

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  100 King Street West, 4th Floor

  
	
   

  	
  Toronto, Ontario
  M5X-1H3

  
	
   

  	
  Attention: Sean
  Gallaway

  
	
   

  	
  Tel: (416) 359-6830

  
	
   

  	
  Fax: (416)-359-7796

  
	
   

  	
  email:
  sean.gallaway@bmo.com

  



 

















 


	
   

  	
  THE NORTHERN TRUST COMPANY, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey B. Clark

  
	
   

  	
  Name:

  	
  Jeffrey B. Clark

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  50 South LaSalle Street

  
	
   

  	
  Chicago, IL 60675

  
	
   

  	
  Attention: Linda Honda

  
	
   

  	
  Tel: (312) 444-3532

  
	
   

  	
  Fax: (312) 630-1566

  
	
   

  	
  email:

  



 

















 


	
   

  	
  NATIONAL CITY BANK, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Cortese

  
	
   

  	
  Name:

  	
  Michael
  Cortese

  
	
   

  	
  Title:

  	
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
  One N. Franklin

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
  Attention: Michael
  Cortese

  
	
   

  	
  Tel: 312–338–2211

  
	
   

  	
  Fax: 312–384–4666

  
	
   

  	
  email: michael.cortese@nationalcity.com