Exhibit 10.1


 


EXECUTION VERSION


 




 








 


CREDIT AGREEMENT


 


dated as of August 15, 2008,


 


among


 


CEPHALON, INC.,


 


as Borrower,


 


The Lenders Party Hereto


 


and


 


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent


 






 


DEUTSCHE BANK SECURITIES INC.


and


BANK OF AMERICA N.A.


Co-Syndication Agents


 


WACHOVIA BANK, N.A.


and


BARCLAYS BANK PLC


Co-Documentation Agents


 


J.P. MORGAN SECURITIES INC.,


DEUTSCHE BANK SECURITIES INC.


and


BANC OF AMERICA SECURITIES LLC,


Joint Bookrunners and Joint Lead Arrangers




 





[CS&M C/M No. 6701-784]


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  Definitions

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Defined
  Terms

  	
  1

  
	
  SECTION 1.02.

  	
  Classification
  of Loans and Borrowings

  	
  30

  
	
  SECTION 1.03.

  	
  Terms
  Generally

  	
  30

  
	
  SECTION 1.04.

  	
  Accounting
  Terms; GAAP; Pro Forma Calculations

  	
  31

  
	
  SECTION 1.05.

  	
  Currency
  Translation

  	
  31

  
	
  SECTION 1.06.

  	
  Status of
  Obligations

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  The Credits

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Commitments

  	
  32

  
	
  SECTION 2.02.

  	
  Loans and
  Borrowings

  	
  33

  
	
  SECTION 2.03.

  	
  Requests for
  Borrowings

  	
  34

  
	
  SECTION 2.04.

  	
  Swingline Loans

  	
  34

  
	
  SECTION 2.05.

  	
  Letters of
  Credit

  	
  36

  
	
  SECTION 2.06.

  	
  Funding of
  Borrowings

  	
  41

  
	
  SECTION 2.07.

  	
  Interest
  Elections

  	
  41

  
	
  SECTION 2.08.

  	
  Termination,
  Reduction and Expansion of Commitments

  	
  43

  
	
  SECTION 2.09.

  	
  Repayment of
  Loans; Evidence of Debt

  	
  45

  
	
  SECTION 2.10.

  	
  Prepayment
  of Loans

  	
  45

  
	
  SECTION 2.11.

  	
  Fees

  	
  46

  
	
  SECTION 2.12.

  	
  Interest

  	
  47

  
	
  SECTION 2.13.

  	
  Alternate
  Rate of Interest

  	
  48

  
	
  SECTION 2.14.

  	
  Increased
  Costs

  	
  49

  
	
  SECTION 2.15.

  	
  Break
  Funding Payments

  	
  50

  
	
  SECTION 2.16.

  	
  Taxes

  	
  51

  
	
  SECTION 2.17.

  	
  Payments
  Generally; Pro Rata Treatment; Sharing of Setoffs

  	
  54

  
	
  SECTION 2.18.

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  Representations
  and Warranties

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Organization;
  Powers

  	
  57

  
	
  SECTION 3.02.

  	
  Authorization;
  Enforceability

  	
  57

  
	
  SECTION 3.03.

  	
  Governmental
  Approvals; Absence of Conflicts

  	
  57

  
	
  SECTION 3.04.

  	
  Financial
  Condition; No Material Adverse Change

  	
  58

  
	
  SECTION 3.05.

  	
  Properties

  	
  58

  



 


i

















 


	
  SECTION 3.06.

  	
  Litigation
  and Environmental Matters

  	
  58

  
	
  SECTION 3.07.

  	
  Compliance
  with Laws and Agreements

  	
  59

  
	
  SECTION 3.08.

  	
  Investment
  Company Status

  	
  59

  
	
  SECTION 3.09.

  	
  Taxes

  	
  59

  
	
  SECTION 3.10.

  	
  ERISA; Labor
  Matters

  	
  59

  
	
  SECTION 3.11.

  	
  Subsidiaries
  and Joint Ventures

  	
  60

  
	
  SECTION 3.12.

  	
  Disclosure

  	
  60

  
	
  SECTION 3.13.

  	
  Collateral
  Matters

  	
  60

  
	
  SECTION 3.14.

  	
  Federal
  Reserve Regulations

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  Conditions

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Effective
  Date

  	
  61

  
	
  SECTION 4.02.

  	
  Each Credit
  Event

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  Affirmative
  Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Financial
  Statements and Other Information

  	
  64

  
	
  SECTION 5.02.

  	
  Notices of
  Material Events

  	
  66

  
	
  SECTION 5.03.

  	
  Additional
  Subsidiaries

  	
  66

  
	
  SECTION 5.04.

  	
  Information
  Regarding Collateral

  	
  67

  
	
  SECTION 5.05.

  	
  Existence;
  Conduct of Business

  	
  67

  
	
  SECTION 5.06.

  	
  Payment of
  Obligations

  	
  67

  
	
  SECTION 5.07.

  	
  Maintenance
  of Properties

  	
  68

  
	
  SECTION 5.08.

  	
  Insurance

  	
  68

  
	
  SECTION 5.09.

  	
  Books and
  Records; Inspection and Audit Rights

  	
  68

  
	
  SECTION 5.10.

  	
  Compliance
  with Laws

  	
  68

  
	
  SECTION 5.11.

  	
  Use of
  Proceeds and Letters of Credit

  	
  68

  
	
  SECTION 5.12.

  	
  Further Assurances

  	
  68

  
	
  SECTION 5.13.

  	
  Certain
  Post-Closing Collateral Obligations

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  Negative
  Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Indebtedness;
  Certain Equity Securities

  	
  69

  
	
  SECTION 6.02.

  	
  Liens

  	
  71

  
	
  SECTION 6.03.

  	
  Fundamental
  Changes; Business Activities

  	
  72

  
	
  SECTION 6.04.

  	
  Investments,
  Loans, Advances, Guarantees and Acquisitions

  	
  73

  
	
  SECTION 6.05.

  	
  Asset Sales

  	
  75

  
	
  SECTION 6.06.

  	
  Sale/Leaseback
  Transactions

  	
  76

  
	
  SECTION 6.07.

  	
  Hedging
  Agreements

  	
  76

  
	
  SECTION 6.08.

  	
  Restricted
  Payments; Certain Payments of Indebtedness

  	
  76

  



 


ii

















 


	
  SECTION 6.09.

  	
  Transactions
  with Affiliates

  	
  77

  
	
  SECTION 6.10.

  	
  Restrictive
  Agreements

  	
  78

  
	
  SECTION 6.11.

  	
  Amendment of
  Subordinated Indebtedness

  	
  78

  
	
  SECTION 6.12.

  	
  Interest
  Expense Coverage Ratio

  	
  78

  
	
  SECTION 6.13.

  	
  Leverage
  Ratio

  	
  79

  
	
  SECTION 6.14.

  	
  Senior
  Leverage Ratio

  	
  79

  
	
  SECTION 6.15.

  	
  Change in
  Fiscal Year

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  Events of
  Default

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  The
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  Miscellaneous

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Notices

  	
  85

  
	
  SECTION 9.02.

  	
  Waivers;
  Amendments

  	
  86

  
	
  SECTION 9.03.

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  87

  
	
  SECTION 9.04.

  	
  Successors
  and Assigns

  	
  89

  
	
  SECTION 9.05.

  	
  Survival

  	
  92

  
	
  SECTION 9.06.

  	
  Counterparts;
  Integration; Effectiveness

  	
  93

  
	
  SECTION 9.07.

  	
  Severability

  	
  93

  
	
  SECTION 9.08.

  	
  Right of
  Setoff

  	
  93

  
	
  SECTION 9.09.

  	
  Governing
  Law; Jurisdiction; Consent to Service of Process

  	
  94

  
	
  SECTION 9.10.

  	
  WAIVER OF
  JURY TRIAL

  	
  94

  
	
  SECTION 9.11.

  	
  Headings

  	
  95

  
	
  SECTION 9.12.

  	
  Confidentiality

  	
  95

  
	
  SECTION 9.13.

  	
  Interest
  Rate Limitation

  	
  95

  
	
  SECTION 9.14.

  	
  Release of
  Liens and Guarantees

  	
  96

  
	
  SECTION 9.15.

  	
  USA PATRIOT
  Act Notice

  	
  96

  
	
  SECTION 9.16.

  	
  No Fiduciary
  Relationship

  	
  96

  
	
  SECTION 9.17.

  	
  Non-Public
  Information

  	
  96

  



 


iii

















 


	
  SCHEDULES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  —

  	
  Existing Letters of Credit

  
	
  Schedule 1.01(b)

  	
  —

  	
  Investment Policy

  
	
  Schedule 2.01

  	
  —

  	
  Commitments

  
	
  Schedule
  3.11

  	
  —

  	
  Subsidiaries
  and Joint Ventures

  
	
  Schedule
  6.01

  	
  —

  	
  Existing
  Indebtedness

  
	
  Schedule
  6.02

  	
  —

  	
  Existing
  Liens

  
	
  Schedule
  6.04

  	
  —

  	
  Existing
  Investments

  
	
  Schedule
  6.10

  	
  —

  	
  Existing
  Restrictions

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
  Form of Assignment and Assumption

  
	
  Exhibit B

  	
  —

  	
  Form of Borrowing Request

  
	
  Exhibit C

  	
  —

  	
  Form of Compliance Certificate

  
	
  Exhibit D

  	
  —

  	
  Form of Guarantee and Collateral Agreement

  
	
  Exhibit E

  	
  —

  	
  Form of Interest Election Request

  
	
  Exhibit F

  	
  —

  	
  Mandatory Costs Rate

  
	
  Exhibit G

  	
  —

  	
  Form of Perfection Certificate

  
	
  Exhibit H

  	
  —

  	
  Form of Promissory Note Evidencing Permitted Foreign Loans

  
	
  Exhibit I

  	
  —

  	
  Form of US Tax Compliance Certificate

  



 


iv

















 


CREDIT AGREEMENT dated as of August 15,
2008, among CEPHALON, INC., a Delaware corporation (the “Borrower”), the
LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.


 


The Borrower (such term and each other
capitalized term used and not otherwise defined herein having the meaning
assigned to it in Article I) has requested the Lenders to extend credit in
the form of Revolving Loans, Swingline Loans and Letters of Credit in amounts
at any time outstanding that will not result in the aggregate Revolving
Exposures exceeding US$200,000,000, and the Lenders are willing, on the terms
and subject to the conditions set forth herein, to extend such credit.


 


Accordingly, the parties hereto
agree as follows:


 


ARTICLE I


 


Definitions


 


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


 


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


 


“Adjusted EURIBO Rate”
means, with respect to any EURIBOR Borrowing for any Interest Period, an
interest rate per annum equal to the sum of (a) the EURIBO Rate for such
Interest Period and (b) the Mandatory Costs Rate.


 


“Adjusted LIBO Rate”
means (a) with respect to any LIBOR Borrowing denominated in US Dollars
for any Interest Period, an interest rate per annum equal to the product of (i) the
LIBO Rate for US Dollars for such Interest Period multiplied by (ii) the
Statutory Reserve Rate and (b) with respect to any LIBOR Borrowing
denominated in Sterling or Euro for any Interest Period, an interest rate per
annum equal to the sum of (i) the LIBO Rate for such currency and such
Interest Period plus (ii) the Mandatory Costs Rate.


 


“Administrative Agent”
means JPMCB, in its capacity as administrative agent hereunder and under the
other Loan Documents, and its successors in such capacity as provided in Article VIII;
provided, that the Administrative Agent may from time to time designate
one or more of its Affiliates or branches to perform the functions of the
Administrative Agent in connection with Loans or Borrowings denominated in any
Alternate Currency, in which case references herein to the “Administrative
Agent” shall, in connection with Loans or Borrowings denominated in such
Alternate Currency, mean any Affiliate or branch so designated.  For purposes of Article VIII and Section 9.03
hereof and, unless the context otherwise requires, any other provision hereof
or of the other Loan Documents, the term “Administrative Agent” shall also
refer to JPMCB in its


 

















 


capacity as a
trustee under any Security Document, and its successors in such capacity as
provided in the Declaration of Trust.


 


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


 


“Affiliate” means, with
respect to a specified Person, another Person that directly or indirectly
Controls or is Controlled by or is under common Control with the Person
specified; provided, however, that for purposes of Section 6.09,
the term “Affiliate” shall also mean any Person that is an executive officer or
director of the Person specified and any Person that directly or indirectly
beneficially owns Equity Interests in the Person specified representing 10% or
more of the aggregate ordinary voting power or the aggregate equity value
represented by the issued and outstanding Equity Interests in the Person
specified.


 


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


 


“Alternate Currencies”
means Euro and Sterling.


 


“Applicable Percentage”
means, with respect to any Lender at any time, the percentage of the aggregate
Commitments represented by such Lender’s Commitment at such time; provided
that if the Commitments have expired or been terminated, the Applicable
Percentages shall be determined on the basis of the Commitments most recently
in effect, giving effect to any assignments.


 


“Applicable Rate” means,
for any day, the applicable rate per annum set forth below under the caption “ABR
Spread”, “LIBOR/EURIBOR/Federal Funds Spread” or “Commitment Fee Rate”, as the
case may be, based upon the Leverage Ratio as of the end of the fiscal quarter
of the Borrower for which consolidated financial statements have theretofore
been most recently delivered pursuant to Section 5.01(a) or 5.01(b); provided
that, prior to the third Business Day following the date of the delivery of the
consolidated financial statements as of and for the fiscal quarter ended September 30,
2008, the Applicable Rate shall be based on the rates per annum set forth in
Pricing Level IV:


 


	
  Pricing Level:

  	
   

  	
  Leverage Ratio

  	
   

  	
  Commitment

  Fee Rate

  	
   

  	
  LIBOR/EURIBOR/

  Federal Funds

  Spread

  	
   

  	
  ABR

  Spread

  	
   

  
	
  Level I

  	
   

  	
  < 1.00 to 1.00

  	
   

  	
  0.200

  	
  %

  	
  1.25

  	
  %

  	
  0.25

  	
  %

  
	
  Level II

  	
   

  	
  > 1.00 to 1.00 but < 1.50 to 1.00

  	
   

  	
  0.225

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  



 


2

















 


	
  Pricing Level:

  	
   

  	
  Leverage Ratio

  	
   

  	
  Commitment

  Fee Rate

  	
   

  	
  LIBOR/EURIBOR/

  Federal Funds

  Spread

  	
   

  	
  ABR

  Spread

  	
   

  
	
  Level III

  	
   

  	
  > 1.50 to 1.00 but <2.25 to 1.00

  	
   

  	
  0.275

  	
  %

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  
	
  Level IV

  	
   

  	
  > 2.25 to 1.00 but < 3.00 to 1.00

  	
   

  	
  0.325

  	
  %

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  
	
  Level V

  	
   

  	
  > 3.00 to 1.00

  	
   

  	
  0.450

  	
  %

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  



 


For purposes of the foregoing,
each change in the Applicable Rate resulting from a change in the Leverage
Ratio shall be effective during the period commencing on and including the
third Business Day following the date of delivery to the Administrative Agent
pursuant to Section 5.01(a) or 5.01(b) of the consolidated
financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change.  Notwithstanding the foregoing, if the
Borrower fails to deliver any consolidated financial statements required to be
delivered pursuant to Section 5.01(a) or 5.01(b) or any related
Compliance Certificate, then for the period commencing on and including the fifth
Business Day after the required date for such delivery specified herein and
ending on and including the first Business Day after the delivery thereof, the
Applicable Rate shall be based on the rates per annum set forth in Pricing
Level V.


 


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


 


“Arrangers” means J.P.
Morgan Securities Inc., Deutsche Bank Securities Inc. and Banc of America
Securities LLC in their capacities as the joint lead arrangers and joint
bookrunners for the credit facility provided for herein.


 


“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an Eligible
Assignee, with the consent of any Person whose consent is required by Section 9.04,
in the form of Exhibit A or any other form approved by the Administrative
Agent.


 


“Availability Period”
means the period from and including the Effective Date to but excluding the
earlier of the Maturity Date and the date of termination of the Commitments.


 


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


 


3

















 


“Borrower” has the
meaning assigned to such term in the preamble hereto.


 


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


 


“Borrowing Minimum” means (a) in the case of a Borrowing
denominated in US Dollars, US$5,000,000 and (b) in the case of a Borrowing
denominated in any Alternate Currency, 5,000,000 units of such currency.


 


“Borrowing Multiple” means (a) in the case of a
Borrowing denominated in US Dollars, US$1,000,000 and (b) in the case of a
Borrowing denominated in any Alternate Currency, the smallest amount of such
Alternate Currency that is an integral multiple of 1,000,000 units of such
currency and that has a US Dollar Equivalent in excess of US$1,000,000.


 


“Borrowing Request”
means a request by the Borrower for a Borrowing in accordance with Section 2.03
or 2.04, as applicable, which shall be, in the case of any such written
request, in the form of Exhibit B or any other form approved by the
Administrative Agent.


 


“Business Day” means any
day that is not a Saturday, Sunday or other day on which commercial banks in
New York City are authorized or required by law to remain closed; provided
that, (a) when used in connection with a LIBOR Loan in any currency, the
term “Business Day” shall also exclude any day on which banks are not open for
dealings in deposits in that currency in the London interbank market, and (b) when
used in connection with a EURIBOR Loan, the term “Business Day” shall also exclude any day on which TARGET is not
open for the settlement of payments in Euros.


 


“Capital Expenditures”
means, for any period, (a) the additions to property, plant and equipment
of the Borrower and its consolidated Subsidiaries that are (or are required to
be) set forth in a consolidated statement of cash flows of the Borrower for
such period prepared in accordance with GAAP, excluding (i) any such
expenditures made to restore, replace or rebuild assets to the condition of
such assets immediately prior to any casualty or other insured damage to, or
any taking under power of eminent domain or by condemnation or similar
proceeding of, such assets to the extent such expenditures are made with
insurance proceeds, condemnation awards or damage recovery proceeds relating to
any such casualty, damage, taking, condemnation or similar proceeding, (ii) leasehold
improvement expenditures for which the Borrower or a Subsidiary is reimbursed
by the lessor, sublessor or sublessee, and (iii) with respect to any
Permitted Acquisition, the purchase price thereof, and (b) that portion of
principal payments on Capital Lease Obligations or Synthetic Lease Obligations
made by the Borrower and its consolidated Subsidiaries during such period as is
attributable to additions to property, plant and equipment that have not
otherwise been reflected on the consolidated statement of cash flows as
additions to property, plant and equipment.


 


4
















 


“Capital Lease Obligations” of any
Person means the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.  For purposes of Section 6.02, a Capital
Lease Obligation shall be deemed to be secured by a Lien on the property being
leased and such property shall be deemed to be owned by the lessee.


 


“CFC” means (a) each Person that
is a “controlled foreign person” for purposes of the Code and (b) each Subsidiary
of any such controlled foreign person.


 


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


 


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


 


“Code” means the Internal Revenue Code
of 1986.


 


“Collateral” means any and all assets
on which Liens are purported to be granted pursuant to the Security Documents
as security for the Secured Obligations.


 


“Commitment” means, with respect to
each Lender, the commitment of such Lender to make Revolving Loans and to
acquire participations in Letters of Credit or Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate permitted amount of
such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.  The
initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in
the Assignment and Assumption pursuant to which such Lender shall have assumed
its Commitment, as applicable.  The
initial aggregate amount of the Lenders’ Commitments is US$200,000,000.


 


“Commitment Letter” means the
agreement dated June 20, 2008, among the Borrower, JPMorgan Chase Bank,
N.A., J.P. Morgan Securities, Inc., Deutsche Bank 


 


5

















 


AG New York Branch, Deutsche Bank Securities, Inc.,
Bank of America, N.A., and Banc of America Securities LLC.


 


“Compliance Certificate” means a
Compliance Certificate in the form of Exhibit C or any other form
reasonably acceptable to the Administrative Agent.


 


“Confidential Information Memorandum”
means the Confidential Information Memorandum dated June 2008 relating to
the credit facility provided for herein.


 


“Consolidated Cash Interest Expense”
means, for any period, the excess of (a) the sum, without duplication, of (i) the
interest expense (including imputed interest expense in respect of Capital
Lease Obligations) of the Borrower and its consolidated Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, (ii) the
interest expense that would be imputed for such period in respect of Synthetic
Leases of the Borrower and its consolidated Subsidiaries if such Synthetic
Leases were accounted for as Capital Lease Obligations, determined on a
consolidated basis in accordance with GAAP, (iii) any interest or other
financing costs becoming payable during such period in respect of Indebtedness
of the Borrower or its consolidated Subsidiaries to the extent such interest
shall have been capitalized rather than included in consolidated interest
expense for such period in accordance with GAAP and (iv) any cash payments
made during such period in respect of obligations referred to in clause (b)(ii) below
that were amortized or accrued in a previous period, minus (b) to
the extent included in such consolidated interest expense for such period, the
sum of (i) non-cash amounts attributable to amortization or write-off of
capitalized interest or other financing costs paid in a previous period, (ii) non-cash
amounts attributable to amortization of debt discounts or accrued interest
payable in kind for such period, (iii) fees and expenses associated with
the consummation of the Transactions, (iv) non-cash interest expense
attributable to the movement of the mark-to-market valuations of obligations
under Hedging Agreements or other derivative instruments pursuant to Statement
of Financial Accounting Standards No. 133, (v) any non-cash costs
associated with breakage in respect of Hedging Agreements for interest rates, (vi) expenses
associated with obtaining Hedging Agreements, and (vii) all other non-cash
interest expense accrued or incurred during such period.  In the event that the Borrower or any
Subsidiary shall have completed a Material Acquisition (other than a Drug
Acquisition) or a Material Disposition since the beginning of the relevant
period, Consolidated Cash Interest Expense shall be determined for such period
on a pro  forma basis as if such acquisition or disposition, and
any related incurrence or repayment of Indebtedness, had occurred at the
beginning of such period.


 


“Consolidated EBITDA” means, for any
period, Consolidated Net Income for such period plus (a) without
duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) consolidated interest expense for such period, (ii) consolidated
income tax expense for such period, (iii) depreciation and amortization
for such period, (iv) all extraordinary or non-recurring non-cash charges
for such period, including non-cash charges for such period related to asset
impairments, plant closings or other restructurings of operations, (v) non-cash
stock compensation 


 


6

















 


expense, (vi) acquired in-process
research and development expenses, (vii) Milestone Payments, (viii) all
payments required to be made pursuant to the Department of Justice Settlement
and settlements with state authorities arising out of the same events and all
charges on account of such payments, (ix) fees and expenses associated
with the consummation of the Transactions and (x) any net loss from
discontinued operations or severance expenses associated with the restructuring
plan described in the Borrower’s Form 8-K filed with the SEC on January 15,
2008, minus (b) without duplication and to the extent included in
determining such Consolidated Net Income, (i) all extraordinary or
non-recurring gains for such period and (ii) all cash payments in such
period in respect of items that were reflected as extraordinary or
non-recurring non-cash charges in any prior period (other than charges referred
to in clause (a)(viii) above), all determined on a consolidated basis in
accordance with GAAP; provided, that if a Material Acquisition (other
than a Drug Acquisition) or a Material Disposition shall have occurred since
the beginning of such period, Consolidated EBITDA shall be determined for such
period on a pro  forma basis as if such Material Acquisition or
Material Disposition, and any related incurrence or repayment of Indebtedness,
had occurred at the beginning of such period.


 


“Consolidated
Net Income” means, for any period, the net income or loss of the
Borrower and its Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP;
provided that there shall be
excluded any income (or loss) of any Person other than the Borrower or a
Subsidiary, but any such income so excluded may be included in such period or
any later period to the extent of any cash dividends or distributions actually
paid in the relevant period to the Borrower or any wholly-owned Subsidiary
of the Borrower.


 


“Consolidated
Net Tangible Assets”
means the aggregate amount of assets of the Borrower and its consolidated
Subsidiaries (less applicable reserves and other properly deductible items)
after deducting therefrom (to the extent otherwise included therein) (a) all
current liabilities (other than Borrowings under this Agreement or current
maturities of long-term Indebtedness), and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other intangible
assets, all computed on a consolidated basis in accordance with GAAP.


 


“Consolidated Senior Indebtedness”
means, as of any date, (a) Consolidated Total Indebtedness as of such date
minus (b) the aggregate principal amount of Qualifying Subordinated
Indebtedness as of such date, determined on a consolidated basis in accordance
with GAAP.


 


“Consolidated Total Indebtedness”
means, as of any date, the sum of (a) the aggregate amount of all
Indebtedness of  the Borrower and the
Subsidiaries that would be reflected on a consolidated balance sheet of the
Borrower prepared as of such date, determined on a consolidated basis in accordance
with GAAP and (b) all Indebtedness of the Borrower and the Subsidiaries
consisting of Guarantees of Indebtedness of Persons other than the Borrower or
any Subsidiary; provided that Consolidated Total Indebtedness shall
exclude to the extent otherwise included in this definition, all obligations of
the Borrower and its Subsidiaries of the character referred to in this
definition to the extent owing to the Borrower or any of its Subsidiaries.


 


7

















 


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


 


“Declaration of Trust” means the
Declaration of Trust dated [15] August 2008, between JPMorgan Chase Bank,
N.A., as trustee, and the Administrative Agent.


 


“Default” means any event or condition
that constitutes, or upon notice, lapse of time or both would constitute, an
Event of Default.


 


“Department of Justice Settlement”
means the agreement in principle between the Borrower, the United States
Attorney’s Office for the Eastern District of Pennsylvania, and the United
States Department of Justice announced in November, 2007, and referred to on page sixteen
of the Borrower’s Quarterly Report on Form 10-Q, filed with the SEC on May 7,
2008.


 


“Designated Subsidiary” means (a) each
Material Subsidiary that is not a CFC, (b) each other Subsidiary that is
not a CFC that directly owns any Equity Interests in a Foreign Subsidiary that
is a Material Subsidiary and (c) each Subsidiary that shall have become a
Designated Subsidiary as provided in Section 5.03(b).


 


“Disqualified Equity Interest” means, with
respect to any Person, any Equity Interest in such Person that by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable, either mandatorily or at the option of the holder thereof), or
upon the happening of any event or condition:


 


(a) matures or is mandatorily redeemable (other than solely for
Equity Interests in such Person that do not constitute Disqualified Equity
Interests and cash in lieu of fractional shares of such Equity Interests),
whether pursuant to a sinking fund obligation or otherwise;


 


(b) is convertible or exchangeable at the option of the holder
thereof for Indebtedness or Equity Interests (other than solely for Equity
Interests in such Person that do not constitute Disqualified Equity Interests
and cash in lieu of fractional shares of such Equity Interests); or


 


(c) is or may be redeemable (other than solely for Equity
Interests in such Person that do not constitute Disqualified Equity Interests
and cash in lieu of fractional shares of such Equity Interests) or is or may be
required to be repurchased by such Person or any of its Affiliates, in whole or
in part, at the option of the holder thereof;


 


in each case, on or prior to the date 180
days after the Maturity Date.


 


“Domestic Subsidiary” means any
Subsidiary incorporated or organized under the laws of the United States of
America, any State thereof or the District of 


 


8

















 


Columbia; provided, that the definition
of “Domestic Subsidiary” shall exclude any such Subsidiary that is a direct or
indirect subsidiary of a Foreign Subsidiary.


 


“Drug Acquisition” means any
acquisition (including any license or any acquisition of any license) solely of
all or any portion of the rights in respect of one or more drugs (including
related intellectual property), but not of Equity Interests in any Person or
any operating business unit.


 


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


 


“Eligible Assignee” means (a) a
Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any
other Person (other than a natural person) approved by (i) the
Administrative Agent, (ii) an Issuing Bank, and (iii) unless an Event
of Default has occurred and is continuing, the Borrower (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding
the foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates; and provided  further that any Person that
is a Fee Receiver that is not a Permitted Investor will not be an Eligible
Assignee without the written consent of the Borrower (whether or not an Event
of Default has occurred).


 


“Environmental Laws” means all rules,
regulations, codes, ordinances, judgments, orders, decrees and other laws, and
all injunctions, notices or binding agreements, issued, promulgated or entered
into by any Governmental Authority and relating in any way to the environment,
to preservation or reclamation of natural resources, to the management, Release
or threatened Release of any Hazardous Material or to related health or safety
matters.


 


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


 


“Equity Interests” means shares of
capital stock, partnership interests, membership interests, beneficial
interests or other ownership interests, whether voting or nonvoting, in, or
interests in the income or profits of, a Person, and any warrants, options or
other rights entitling the holder thereof to purchase or acquire any of the
foregoing (other than Qualifying Subordinated Indebtedness).


 


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


 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) that, together with the Borrower, is
treated as a single employer under 


 


9

















 


Section 414(b) or 414(c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the
Code.


 


“ERISA Event” means (a) any “reportable
event”, as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) prior to the effectiveness of the applicable
provisions of the Pension Act, the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302
of ERISA) or, on and after the effectiveness of the applicable provisions of
the Pension Act, any failure by any Plan to satisfy the minimum funding
standard (within the meaning of Section 412 of the Code or Section 302
of ERISA) applicable to such Plan, in each case whether or not waived; (c) the
filing pursuant to, prior to the effectiveness of the applicable provisions of
the Pension Act, Section 412(d) of the Code or Section 303(d) of
ERISA or, on and after the effectiveness of the applicable provisions of the
Pension Act, Section 412(c) of the Code or Section 302(c) of
ERISA, of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) on and after the effectiveness of the applicable
provisions of the Pension Act, a determination that any Plan is, or is expected
to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA
or Section 430(i)(4) of the Code); (e) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (f) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (g) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (h) the receipt
by the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA or, on and after the effectiveness
of the applicable provisions of the Pension Act, in endangered or critical
status, within the meaning of Section 305 of ERISA


 


“EURIBO Rate” means, with respect to
any EURIBOR Borrowing for any Interest Period, (a) the applicable Screen
Rate or (b) if no Screen Rate is available for such Interest Period, the
arithmetic mean of the rates quoted by the Administrative Agent to leading
banks in the Banking Federation of the European Union for the offering of
deposits in Euros for a period comparable to such Interest Period, in each case
as of 11:00 a.m., Brussels time, on the Quotation Day.


 


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


 


“Euro”
or “€” means the single currency of the European Union.


 


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


 


10

















 


“Exchange Act” means the United States
Securities Exchange Act of 1934, as amended from time to time.


 


“Exchange
Rate” means, on any day, for purposes of determining the US Dollar
Equivalent of any Alternate Currency, the rate at which such Alternate Currency
may be exchanged into US Dollars at the time of determination on such day as
set forth on the Reuters WRLD Page for such currency.  In the event that such rate does not appear
on any Reuters WRLD Page, the Exchange Rate shall be determined by reference to
such other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the Company, or, in the absence of
such an agreement, such Exchange Rate shall instead be the arithmetic average
of the spot rates of exchange of the Administrative Agent in the market where
its foreign currency exchange operations in respect of such Alternate Currency
are then being conducted, at or about such time as the Administrative Agent
shall elect, on such date for the purchase of US Dollars with such Alternate
Currency for delivery two Business Days later; provided that if at the time of any such determination, for
any reason, no such spot rate is being quoted, the Administrative Agent may use
any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent demonstrable error.


 


“Excluded Taxes” means, with respect
to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of any Loan Party hereunder or any other Loan
Document, (a) any Other Connection
Taxes, (b)  US federal withholding Tax
in effect at the time a Foreign Lender  (other than an assignee under Section 2.18) becomes a party hereto (or designates a new lending office), with respect to any payment made by or on account of any
obligation of a Loan Party to such Foreign
Lender, except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts with
respect to such withholding Tax under Section 2.16, (c) Taxes
attributable to a Lender’s failure to
comply with Section 2.16(g) or
(d) any Taxes imposed on any fee paid by the Borrower under Section 2.11
resulting from a Fee Receiver failing to be a Permitted Investor.


 


“Existing Letter of Credit” means each
letter of credit previously issued for the account of the Borrower by a bank
that is a Lender hereunder on the date hereof and that (a) is outstanding
on the Effective Date and (b) is listed on Schedule 1.01(a).


 


“Federal Funds” when used in reference
to any Loan, indicates that such Loan shall bear interest at the Federal Funds
Rate plus the applicable margin.


 


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


 


11

















 


“Federal Funds Rate” means (i) for
the first day of a Swingline Loan, the rate per annum that is the average of
the rates on the offered side of the Federal funds market quoted by three
interbank Federal funds brokers, selected by the Administrative Agent, at approximately
the time the Borrower requests such Swingline Loan (or at 11:00 a.m. New
York City time on such first day, if such notice is given prior to such first
day), for overnight dollar deposits in immediately available funds in an amount
comparable to the principal amount of such Swingline Loan, and (ii) for
each day of such Swingline Loan thereafter, the rate per annum that is the
average of the rates on the offered side of the Federal funds market quoted by
three interbank Federal funds brokers, selected by the Administrative Agent, at
approximately 1:00 p.m. New York City time on such day (or, if not a
Business Day, on the immediately preceding Business Day) for overnight dollar
deposits in immediately available funds in an amount comparable to the
principal amount of such Swingline Loan; in the case of both clauses (i) and
(ii), as determined by the Administrative Agent and rounded upwards, if
necessary, to the nearest 1/100th of 1%.


 


“Fee Letters” means the Fee Letter
dated June 20, 2008 among the Borrower, JPMorgan Chase Bank, N.A. and J.P.
Morgan Securities, Inc., the Fee Letter dated June 20, 2008, among
the Borrower, Deutsche Bank AG New York Branch and Deutsche Bank Securities, Inc.,
and the Fee Letter dated June 20, 2008 among the Borrower, Bank of
America, N.A. and Banc of America Securities LLC, in each case as the same may
be amended, restated, supplemented or otherwise modified from time to time.


 


“Fee Receiver”
means any Person that receives, or participates in, any payments of fees under Section 2.11.


 


“Financial Officer” means, with
respect to any Person, the chief financial officer, principal accounting
officer (or Person performing similar duties), treasurer or controller of such
Person.


 


“Foreign Lender” means any Lender  that, for United States federal income tax purposes, (a) is not an
individual who is a citizen or resident of the United States, (b) is not a
corporation, partnership or other entity treated as a corporation or
partnership created or organized in or under the laws of the United States, or
any political subdivision thereof, (c) is not an estate whose income is
subject to US federal income taxation regardless of its source, (d) is not
a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United States
persons have the authority to control all substantial decisions of such trust
or (e) is a partnership or other entity treated as a partnership for US
federal income tax purposes, created or organized in or under the laws of the
United States, or any political subdivision thereof, but only to the extent the
beneficial owners (including indirect partners if its direct partners are
partnerships or other entities treated as partnerships for United States federal income tax purposes created or organized in
or under the laws of the United States, or any political subdivision thereof)
are treated as Foreign Lenders under the
clauses (a) through (d) of this definition.  For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.


 


12

















 


“Foreign Pledge Agreement” means a
pledge or charge agreement with respect to Equity Interests in a Foreign
Subsidiary, in form and substance reasonably satisfactory to the Administrative
Agent.


 


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


 


“GAAP” means generally accepted
accounting principles in the United States of America, applied in accordance
with the consistency requirements thereof, it being understood that the term “GAAP”
shall include International Financial Reporting Standards to the extent that
such International Financial Reporting Standards are adopted as standard
accounting principles in the United States of America.


 


“Governmental Approvals” means all
authorizations, consents, approvals, permits, licenses and exemptions of,
registrations and filings with, and reports to, Governmental Authorities.


 


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


 


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


 


13

















 


guaranteeing Person’s maximum reasonably
possible liability in respect thereof as determined by the Borrower in good
faith.


 


“Guarantee and Collateral Agreement”
means the Guarantee and Collateral Agreement among the Borrower, the other Loan
Parties and the Administrative Agent, substantially in the form of Exhibit D,
together with all supplements thereto.


 


“Guarantee and Collateral Requirement” means,
at any time, the requirement that:


 


(a) the
Administrative Agent shall have received from the Borrower and each Designated
Subsidiary either (i) a counterpart of the Guarantee and Collateral
Agreement duly executed and delivered on behalf of such Person or (ii) in
the case of any Person that becomes a Designated Subsidiary after the Effective
Date, a supplement to the Guarantee and Collateral Agreement, in the form
specified therein, duly executed and delivered on behalf of such Person,
together with documents and opinions of the type referred to in paragraphs (b) and
(c) of Section 4.01 with respect to such Designated Subsidiary;


 


(b) all
Equity Interests in each Foreign Subsidiary directly owned by or on behalf of
any Loan Party, other than any such Subsidiary that is not a Material
Subsidiary, shall have been pledged pursuant to the Guarantee and Collateral
Agreement and, where the Administrative Agent determines that a Foreign Pledge
Agreement is advisable in connection with the pledge of such Equity Interests,
a Foreign Pledge Agreement (unless, in the case of any such Equity Interests,
the Administrative Agent shall have received an opinion reasonably satisfactory
to it of local counsel in the applicable jurisdiction confirming that the
Guarantee and Collateral Agreement creates a legal, valid and perfected security
interest that would be given effect under local law by the courts of such
jurisdiction); provided that the Loan Parties shall not be required to
pledge more than 65% of the outstanding voting Equity Interests of any CFC; and
the Administrative Agent shall, to the extent required by the Guarantee and
Collateral Agreement, have received certificates or other instruments
representing all such pledged Equity Interests, together with undated stock
powers or other instruments of transfer with respect thereto endorsed in blank;


 


(c) all
documents and instruments, including Uniform Commercial Code financing
statements, required by applicable law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents and to perfect such Liens to
the extent required by, and with the priority required by, the Security
Documents, shall have been filed, registered or recorded or delivered to the
Administrative Agent for filing, registration or recording;


 


(d) each
Loan Party shall have obtained all consents and approvals required to be
obtained by it in connection with the execution and delivery of all Security
Documents to which it is a party, the performance of its obligations


 


14
















 


thereunder and the granting
by it of the Liens thereunder, except where the failure to obtain any such
consent or approval would not reasonably be expected to have a Material Adverse
Effect.


 


The Administrative Agent may grant extensions
of time for the creation and perfection of security interests in, or the
obtaining of legal opinions or other deliverables with respect to, particular
Equity Interests or the provision of any Guarantee by any Subsidiary (including
extensions beyond the Effective Date or in connection with Subsidiaries formed
or acquired after the Effective Date) where it determines that such action
cannot be accomplished without undue effort or expense by the time or times at
which it would otherwise be required to be accomplished by this Agreement or
the Security Documents.  In the event any
Subsidiary shall become a Material Subsidiary after the date hereof, the
Borrower shall have a period of 30 days after the delivery under Section 5.01
of the financial statements for the first fiscal quarter at the end of which
such Subsidiary shall have been a Material Subsidiary to comply with the
foregoing requirements of this definition insofar as they relate to such
Subsidiary.


 


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


 


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


 


“Indebtedness” of any Person means,
without duplication, (a) all payment obligations of such Person for
borrowed money or with respect to deposits or advances of any kind, (b) all
payment obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all payment obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person (excluding trade accounts payable incurred in the
ordinary course of business), (d) all payment obligations of such Person
in respect of the deferred purchase price of property or services (including
payments in respect of non-competition agreements or other arrangements
representing acquisition consideration, in each case entered into in connection
with an acquisition, but excluding (i)  accounts payable not more than 120
days overdue incurred in the ordinary course of business, (ii) deferred
compensation and (iii) any purchase price adjustment, royalty, earnout or
deferred payment of a similar nature (other than in respect of non-competition
agreements and other such arrangements referred to above) incurred in
connection with an acquisition), (e) all Capital Lease 


 


15

















 


Obligations and Synthetic
Lease Obligations of such Person, (f) all payment obligations, contingent
or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (g) all payment obligations, contingent or
otherwise, of such Person in respect of bankers’ acceptances, (h) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed; provided that, if such Person has not
assumed or otherwise become liable in respect of such Indebtedness, such
obligations shall be deemed to be in an amount equal to the lesser of (i) the
amount of such Indebtedness and (ii) fair market value of such property at
the time of determination (in the Borrower’s good faith estimate), (i) all
Guarantees by such Person of Indebtedness of others and (j) all
Disqualified Equity Interests.  The
Indebtedness of any Person shall include the Indebtedness of any other Person
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a matter of law as a result of such
Person’s ownership interest in or other relationship with such other Person,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.


 


“Indemnified Taxes” means Taxes other
than Excluded Taxes.


 


“Indemnitee” has the meaning assigned
to such term in Section 9.03(b).


 


“Interest Election Request” means a request
by the Borrower to convert or continue a Borrowing in accordance with Section 2.07,
which shall be, in the case of any such written request, in the form of Exhibit E
or any other form approved by the Administrative Agent.


 


“Interest Payment Date” means (a) with
respect to any ABR Loan, the last day of each March, June, September and
December, (b) with respect to any EURIBOR Loan or LIBOR Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a EURIBOR Borrowing or LIBOR Borrowing with an Interest
Period of more than three months’ duration, such day or days prior to the last
day of such Interest Period as shall occur at intervals of three months’
duration after the first day of such Interest Period, and (c) with respect
to any Swingline Loan, the day that such Loan is required to be repaid.


 


“Interest Period” means, with
respect to any LIBOR Borrowing or EURIBOR Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in
the calendar month that is fourteen days or one, two, three or six months
thereafter (or, if agreed to by each Lender, nine or twelve months thereafter),
as the Borrower may elect; provided that (a) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, and (b) any Interest
Period that commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day 


 


16

















 


of the last calendar month
of such Interest Period.  For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.


 


“Investment” means, with respect to a
specified Person, any Equity Interests, evidences of Indebtedness or other
securities (including any warrant or other right to acquire any of the
foregoing) of, or any capital contribution or loans or advances to, or any
Guarantees of any Indebtedness or other payment obligations of any other Person
that are held or made by the specified Person. 
The amount, as of any date of determination, of (a) any Investment
in the form of a loan or an advance shall be the principal amount thereof
outstanding on such date, (b) any Investment in the form of a Guarantee
shall be determined in accordance with the last sentence of the definition of “Guarantee”,
(c) any Investment in the form of a transfer of Equity Interests or other
property by the investor to the investee, including any such transfer in the
form of a capital contribution, shall be the fair market value (as determined
reasonably and in good faith by the chief financial officer of the Borrower) of
such Equity Interests or other property as of the time of the transfer, without
any adjustment for increases or decreases in value of, or write-ups,
write-downs or write offs with respect to, such Investment, (d) any
Investment (other than any Investment referred to in clause (a), (b) or (c) above)
by the specified Person in the form of a purchase or other acquisition for
value of any Equity Interests, evidences of Indebtedness or other securities of
any other Person shall be the original cost of such Investment (including any
Indebtedness assumed in connection therewith), plus the cost of all additions,
as of such date, thereto, and minus the amount, as of such date, of any portion
of such Investment repaid to the investor in cash as a repayment of principal
or a return of capital, as the case may be, but without any other adjustment
for increases or decreases in value of, or write-ups, write-downs or write-offs
with respect to, such Investment, and (e) any Investment (other than any
Investment referred to in clause (a), (b), (c) or (d) above) by
the specified Person in any other Person resulting from the issuance by such
other Person of its Equity Interests to the specified Person shall be the fair
market value (as determined reasonably and in good faith by the chief financial
officer of the Borrower) of such Equity Interests at the time of the issuance
thereof.


 


“Issuing Bank” means (a) JPMCB,
in its capacity as an issuer of Letters of Credit hereunder and (b) solely
in respect of any Existing Letter of Credit, Wachovia Bank, National
Association.  JPMCB may, in its
discretion, arrange for one or more Letters of Credit to be issued by one or
more of its Affiliates, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.


 


“JPMCB” means JPMorgan Chase Bank,
N.A.


 


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


 


17

















 


“LC Exposure” means, at any time, the
sum of (a) the sum of the US Dollar Equivalents of the amounts of all
Letters of Credit that remain available for drawing at such time and (b) the
sum of the US Dollar Equivalents of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time.  The LC Exposure of any Revolving Lender at
any time shall be the sum of such Lender’s Applicable Percentage of the total
LC Exposure at such time.


 


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


 


“Letter of Credit” means any letter of
credit issued pursuant to this Agreement and any Existing Letter of Credit,
other than any such letter of credit that shall have ceased to be a “Letter of
Credit” outstanding hereunder pursuant to Section 9.05.


 


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


 


“LIBO Rate” means, with respect to any
LIBOR Borrowing denominated in any currency for any Interest Period, (a) the
applicable Screen Rate or (b) if no Screen Rate is available for such
currency or for such Interest Period, the arithmetic mean of the rates quoted
by JPMCB, London Branch, to leading banks in the London interbank market for
the offering of deposits in such currency and for a period comparable to such
Interest Period, in each case as of 11:00 a.m., London time, on the
Quotation Day.


 


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


 


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


 


“Loan Documents” means this Agreement,
the Guarantee and Collateral Agreement, the other Security Documents and, other
than for purposes of Section 9.02(b), any promissory notes delivered
pursuant to Section 2.09(c) and the Declaration of Trust.


 


“Loan Documents Obligations” has the
meaning set forth in the Guarantee and Collateral Agreement.


 


“Loan Parties” means the Borrower and
each Subsidiary Loan Party.


 


18

















 


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


 


“Local Time” means (a) with
respect to a Loan or Borrowing denominated in US Dollars or any Letter of
Credit, New York City time, and (b) with respect to a Loan or
Borrowing denominated in Sterling or Euros, London time.


 


“Mandatory Costs Rate” has the meaning
set forth in Exhibit F.


 


“Material Acquisition” means any
acquisition, or a series of related acquisitions, of (a) all or
substantially all the issued and outstanding Equity Interests in any Person or (b) assets
comprising all or substantially all the assets of (or all or substantially all
the assets constituting a business unit, division, product line (including
rights in respect of any drug or other pharmaceutical product) or line of
business of) any Person; provided that the aggregate consideration
therefor (including any Indebtedness assumed by the acquiror in connection therewith)
exceeds US$50,000,000.


 


“Material Adverse Effect” means an
event or condition that has resulted, or could reasonably be expected to
result, in a material adverse effect on (a) the business, operations or
financial condition of the Borrower and its Subsidiaries, taken as a whole, (b) the
ability of the Borrower and its Subsidiaries taken as a whole, to perform any
material obligations under any Loan Document or (c) any material rights of
or remedies available to the Lenders under the Loan Documents.


 


“Material Disposition” means any sale,
transfer or other disposition, or a series of related sales, transfers or other
dispositions, of (a) all or substantially all the issued and outstanding
Equity Interests in any Person or (b) assets comprising all or substantially
all the assets of (or all or substantially all the assets constituting a
business unit, division, product line (including rights in respect of any drug
or other pharmaceutical product) or line of business of) any Person; provided
that the aggregate consideration therefor (including any Indebtedness assumed
by the transferee in connection therewith) exceeds US$50,000,000.


 


“Material Indebtedness” means
Indebtedness (other than the Loans, Letters of Credit and Guarantees under the
Loan Documents), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and the Subsidiaries in an aggregate
outstanding principal amount of US$25,000,000 or more.  For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.


 


 “Material
Subsidiary” means each Subsidiary (a) the consolidated total assets of
which equal 3% or more of the consolidated total assets of the Borrower and the
Subsidiaries or (b) the consolidated revenues of which equal 3% or more of
the consolidated revenues of the Borrower and the Subsidiaries, in each case as
of the end of 


 


19

















 


or for the most recent
period of four consecutive fiscal quarters of the Borrower and the Subsidiaries
for which financial statements have been delivered pursuant to Section 5.01(a) or
5.01(b) (or, prior to the first delivery of any such financial statements,
as of the end of or for the period of four consecutive fiscal quarters of the
Borrower ended March 31, 2008); provided that if at the end of or
for any such most recent period of four consecutive fiscal quarters the
combined consolidated total assets or combined consolidated revenues of all
Subsidiaries that under clauses (a) and (b) above would not
constitute Material Subsidiaries shall have exceeded 10% of the consolidated
total assets of the Borrower or 10% of the consolidated revenues of the
Borrower, then one or more of such excluded Subsidiaries shall for all purposes
of this Agreement be deemed to be Material Subsidiaries in descending order
based on the amounts of their consolidated total assets until such excess shall
have been eliminated.


 


“Maturity Date” means August 15,
2011.


 


“Milestone Payments” means payments made
under contractual arrangements existing during the period of twelve months
ending on the date hereof or arising in connection with any Permitted
Acquisition to sellers of the assets or Equity Interests acquired therein based
on the achievement of specified revenue, profit or other performance targets
(financial or otherwise).


 


“Moody’s” means Moody’s Investors
Service, Inc., and any successor to its rating agency business.


 


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


 


“Other
Connection Taxes” means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other
recipient of any payment to be made by or on account of any obligation of any
Loan Party hereunder or under any other Loan Document, Taxes imposed  as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax  (other than
connections arising from such recipient
having executed, delivered, or become a
party to, performed its obligations or received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to, or
enforced, any Loan Documents).


 


“Other Taxes” means all present or
future stamp, court or documentary Taxes and any other excise, property,
intangible, recording, filing or similar Taxes which arise from any payment
made under, from the execution, delivery,
performance, enforcement or registration of, from
the receipt or perfection of a security interest under, or otherwise
with respect to, any Loan Document.


 


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


 


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


 


“Pension Act” means the Pension
Protection Act of 2006.


 


20

















 


“Perfection Certificate” means a
certificate in the form of Exhibit G or any other form approved by the
Administrative Agent.


 


“Permitted Acquisition” means the
purchase or other acquisition by the Borrower or any Subsidiary of Equity
Interests in, or all or substantially all the assets of (or all or
substantially all the assets constituting a business unit, division, product
line (including rights in respect of any drug or other pharmaceutical product)
or line of business of), any Person in a single transaction or a series of
related transactions if (a) (i) in the case of any purchase or other
acquisition of Equity Interests in a Person, such Person (including each subsidiary
of such Person), upon the consummation of such acquisition, will be a
wholly-owned Subsidiary (including as a result of a merger or consolidation
between any Subsidiary and such Person) or (ii) in the case of any
purchase or other acquisition of other assets, such assets will be owned by the
Borrower or a wholly-owned Subsidiary; (b) the business of such Person, or
the business conducted with such assets, as the case may be, constitutes a
business permitted by Section 6.03(b); and (c) at the time of and
immediately after giving effect to any such purchase or other acquisition, (i) no
Default shall have occurred and be continuing, (ii) the Borrower shall be
in compliance with the covenants set forth in Sections 6.12, 6.13 and
6.14, (iii) except in the case of a Drug Acquisition, the Borrower’s
Leverage Ratio shall not exceed 3.50 to 1.00 and the Borrower’s Senior Leverage
Ratio shall not exceed 1.75 to 1.00, in each case determined on a pro  forma
basis in accordance with Section 1.04(b), (iv) in the case of a Drug
Acquisition, the Borrower’s Leverage Ratio shall not exceed 3.50 to 1.00 and
the Borrower’s Senior Leverage Ratio shall not exceed 1.75 to 1.00 (without,
for the avoidance of doubt, any pro  forma adjustment to
Consolidated EBITDA for such Drug Acquisition) and (v) in the case of a
Material Acquisition, the Borrower shall have delivered to the Administrative
Agent a certificate of a Financial Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all the requirements
set forth in this definition have been satisfied with respect to such purchase
or other acquisition, together, except in the case of a Drug Acquisition, with
reasonably detailed calculations demonstrating satisfaction of the requirements
set forth in clause (c)(iii) or (c)(iv) above, as applicable.


 


“Permitted Encumbrances” means:


 


(a) Liens imposed by law for Taxes that are not yet due or are
being contested in compliance with Section 5.06 and Liens for unpaid
utility charges;


 


(b) carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s and other similar Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more than
60 days or are being contested in compliance with Section 5.06;


 


(c) pledges and deposits to secure obligations in compliance with
workers’ compensation, unemployment insurance and other social security or
employment laws or to secure other public, statutory or regulatory obligations;


 


21

















 


(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a similar nature, in each case in the ordinary course of
business;


 


(e) judgment liens in respect of judgments that do not constitute
an Event of Default under clause (k) of Article VII or securing
appeal or surety bonds related to such judgments;


 


(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
adversely affect the use of the affected property in the ordinary conduct of
business of the Borrower or any Subsidiary;


 


(g) banker’s liens, rights of setoff or similar rights and
remedies as to deposit accounts or other funds maintained with depository
institutions; provided that such deposit accounts or funds are not
established or deposited for the purpose of providing collateral for any
Indebtedness and are not subject to restrictions on access by the Borrower or
any Subsidiary in excess of those required by applicable banking regulations;
and


 


(h) Liens
arising by virtue of Uniform Commercial Code financing statement filings (or
similar filings under applicable law) regarding operating leases entered into
by the Borrower and the Subsidiaries in the ordinary course of business.


 


“Permitted Foreign Entities” means Anesta AG,
Cephalon Holdings, Ltd., and Cephalon Luxembourg S.a.r.l.


 


“Permitted Foreign Loan” means a loan made by
the Borrower or a Subsidiary Loan Party to any Permitted Foreign Entity after
the date hereof that satisfies the following requirements: (a) the
proceeds of such loan are used to finance an acquisition permitted under clause
(m) or (n) of Section 6.04; (b) such loan is evidenced by a
promissory note of such Permitted Foreign Entity in the form of Exhibit H
hereto; and (c) such promissory note is delivered and pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement, and is
accompanied by a certificate of a responsible officer of the issuer
representing that such promissory note constitutes a valid and binding
obligation of such issuer.


 


“Permitted Investments” means:


 


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


 


22

















 


public instrumentality thereof, in each case
maturing within one year from the date of acquisition thereof, and, at the time
of acquisition, having one of the two highest credit ratings obtainable from
S&P or Moody’s;


 


(b) investments in commercial paper maturing within one year from
the date of acquisition thereof and having, at such date of acquisition,
ratings from S&P and Moody’s of A-1 and P-1, respectively;


 


(c) investments in certificates of deposit, banker’s acceptances
and time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof that has a
combined capital and surplus and undivided profits of not less than
US$500,000,000;


 


(d) repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause (c) above;


 


(e) money market funds that (i) comply with the criteria set
forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are
rated AAA by S&P or Aaa by Moody’s and (iii) have portfolio assets of
at least US$1,000,000,000;


 


(f) in the case of any Foreign Subsidiary, other short-term
investments that are analogous to the foregoing, are of comparable credit
quality and are customarily used by companies in the jurisdiction of such
Foreign Subsidiary for cash management purposes; and


 


(g) any other investments permitted by the Borrower’s investment
policy as set forth on Schedule 1.01(b) and complying with the
concentration, minimum rating and other requirements set forth in such policy; provided
that investments in (i) corporate debt securities, including bonds, notes,
and floating rate notes (other than commercial paper, including commercial
paper issued by multi-seller commercial paper conduits), (ii) asset backed
securities and (iii) mortgage backed securities shall not constitute
Permitted Investments.


 


“Permitted Investor” means any Fee
Receiver that, with respect to any fees paid under Section 2.11, delivers
to the Borrower and the Administrative Agent, on or prior to the date on which
such Person becomes a party hereto (and from time
to time thereafter upon the request of the Borrower and the Administrative
Agent, unless such Lender or such Issuing
Bank becomes legally unable to do so
solely as a result of a Change in Law after becoming a party hereto), accurate and
duly completed copies (in such number as requested) of one or more of Internal
Revenue Service Forms W-9, W-8ECI, W-8EXP, W-8BEN  or W-8IMY
(together with, if applicable, one of the aforementioned forms duly completed
from each direct or indirect beneficial owner of such Lender or such Issuing
Bank) or any successor thereto that entitle such Lender or 


 


23

















 


such Issuing Bank to a
complete exemption from US withholding tax on such payments (provided that, in the case of the Internal Revenue Service Form W-8BEN,
a Lender or an Issuing Bank providing such form shall qualify as a Permitted Investor
only if such form establishes such exemption on the basis
of the “business profits” or “other income” articles of a tax treaty to which
the United States is a party and provides a US taxpayer identification number),
in each case together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower
or the Administrative Agent to determine whether such Lender or such
Issuing Bank is entitled to such complete exemption.


 


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


 


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


 


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


 


“Priority Indebtedness” means, without
duplication, (a) all Indebtedness of any Subsidiary (other than any
Subsidiary that shall be a Subsidiary Loan Party), (b) all Indebtedness of
the Borrower or any Subsidiary that is secured by any Lien on any asset of the
Borrower or any Subsidiary and (c) all Indebtedness of the Borrower or any
Subsidiary that is referred to in clause (e) or (h) of the definition
of Indebtedness in this Section 1.01; provided, that Priority
Indebtedness shall exclude to the extent otherwise included in the preceding
clauses (a) through (c), all obligations of the Borrower and the
Subsidiaries of the character referred to in this definition to the extent
owing to the Borrower or any of the Subsidiaries.


 


“Qualifying Subordinated Indebtedness”
means, as of any date, the aggregate principal amount outstanding on such date
of (a) the 2010 Subordinated Notes and the 2015 Subordinated Notes and (b) any
other Indebtedness (including related Guarantees) for borrowed money of the
Borrower that is expressly subordinated to the Loan Documents Obligations on
terms not less favorable to the Lenders than those applicable to the 2015
Subordinated Notes; provided that in the case of such Indebtedness
referred to in the preceding clause (b), (i) the maturity of such
Indebtedness shall not be earlier than the date 91 days after the Maturity
Date; (ii) such Indebtedness shall not be required to be repaid, prepaid,
redeemed, repurchased or defeased, whether on one or more fixed dates, upon the
occurrence of one or more events or at the option of any holder thereof, prior
to the date 91 days after the Maturity Date; (iii) such Indebtedness shall
not constitute an obligation of any Subsidiary that shall not be a Subsidiary
Loan 


 


24

















 


Party; (iv) such
Indebtedness shall not be secured by any Lien on any asset of the Borrower or
any Subsidiary; and (v) such Indebtedness shall not contain any covenants
that, taken as a whole, are materially more restrictive than those set forth in
this Agreement.


 


“Quotation Day” means (a) with
respect to any currency (other than Sterling) for any Interest Period, two
Business Days prior to the first day of such Interest Period and (b) with
respect to Sterling for any Interest Period, the first day of such Interest
Period, in each case unless market practice differs in the Relevant Interbank
Market for any currency, in which case the Quotation Day for such currency shall
be determined by the Administrative Agent in accordance with market practice in
the Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day, the
Quotation Day shall be the last of those days).


 


“Recipient” has the meaning set forth
in Section 2.16(a).


 


“Refinancing Indebtedness” means, in
respect of any Indebtedness (the “Original Indebtedness”), any
Indebtedness that extends, renews, replaces, re-evidences or refinances such
Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided
that (a) the principal amount of such Refinancing Indebtedness shall not
exceed the principal amount of such Original Indebtedness; (b) the
maturity of such Refinancing Indebtedness shall not be earlier, and the
weighted average life to maturity of such Refinancing Indebtedness shall not be
shorter, than that of such Original Indebtedness; (c) such Refinancing
Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased
or defeased, whether on one or more fixed dates, upon the occurrence of one or
more events or at the option of any holder thereof (except, in each case, upon
the occurrence of an event of default or a change in control or as and to the
extent such repayment, prepayment, redemption, repurchase or defeasance would
have been required pursuant to the terms of such Original Indebtedness) prior
to the earlier of (i) the maturity of such Original Indebtedness and (ii) the
date 180 days after the Maturity Date; (d) such Refinancing Indebtedness
shall not constitute an obligation of any Subsidiary that shall not have been
(or, in the case of after-acquired Subsidiaries, shall not have been required
to become) an obligor in respect of such Original Indebtedness, except that any
such Refinancing Indebtedness may provide for guarantees by the Borrower or any
Subsidiary; provided, that if such Original Indebtedness or any such
guarantees by the Borrower or any Subsidiary in respect thereof shall have been
subordinated to the Borrower’s or such Subsidiary’s obligations hereunder or
under the Guarantee and Collateral Agreement, any such guarantee in respect of
Refinancing Indebtedness shall be subordinated to the Borrower’s or such
Subsidiary’s obligations hereunder or under the Guarantee and Collateral
Agreement on terms and conditions no less favorable to the Lenders than the
terms and conditions applicable to such Original Indebtedness or guarantee in
respect thereof; (e) if such Original Indebtedness shall have been
subordinated to the Loan Documents Obligations, such Refinancing Indebtedness
shall also be subordinated to the Loan Documents Obligations on terms not less
favorable in any material respect to the Lenders; and (f) such Refinancing
Indebtedness shall not be secured by any Lien on any asset other than the
assets that secured such Original


 


25
















 


Indebtedness (or would have
been required to secure such Original Indebtedness pursuant to the terms
thereof) or, in the event Liens securing the Original Indebtedness shall have
been contractually subordinated to any Lien securing the Loan Documents Obligations,
by any Lien that shall not have been contractually subordinated to at least the
same extent.


 


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


 


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


 


“Release” means any release, spill,
emission, leaking, dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into or through the environment or within or
upon any building, structure, facility or fixture.


 


“Relevant Interbank Market” means (a) with
respect to any currency (other than Euros), the London interbank market and (b) with
respect to Euros, the European interbank market.


 


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


 


“Restricted Payment” means any
dividend or other distribution (whether in cash, securities or other property)
with respect to any Equity Interests in the Borrower, or any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation, termination or settlement of any Equity Interests in the
Borrower.


 


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


 


“Revolving Loans” means Loans made by
the Lenders pursuant to Section 2.01. 
Each Revolving Loan denominated in US Dollars shall be a LIBOR Loan or
an ABR Loan.  Each Revolving Loan
denominated in Sterling shall be a LIBOR Loan. 
Each Revolving Loan denominated in Euros shall be a EURIBOR Loan.


 


“Sale/Leaseback
Transaction” means an arrangement relating to property owned by the
Borrower or any Subsidiary whereby the Borrower or such Subsidiary sells or
transfers such property to any Person and the Borrower or any Subsidiary leases
such property, or other property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred, from such Person
or its Affiliates.


 


“Screen Rate” means (a) in
respect of the LIBO Rate for any currency for any Interest Period, the British
Bankers Association Interest Settlement Rate for such currency and such
Interest Period as set forth on the applicable page of the Reuters 


 


26

















 


Service (and if such page is
replaced or such service ceases to be available, another page or service
displaying the appropriate rate designated by the Administrative Agent) and (b) in
respect of the EURIBO Rate for any Interest Period, the percentage per annum
determined by the Banking Federation of the European Union for such Interest
Period as set forth on the applicable page of the Reuters Service (and if
such page is replaced or such service ceases to be available, another page or
service displaying the appropriate rate designated by the Administrative
Agent).


 


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


 


“SEC” means the United States
Securities and Exchange Commission.


 


“SEC
Reports” means (a) the Annual Report of the Borrower on Form 10-K
for the year ended December 31, 2007, as filed with the SEC on February 28,
2008, (b) the Borrower’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2008, as filed with the SEC on August 5, 2008
and (c) the Borrower’s current Reports on Form 8-K as filed with the
SEC prior to August 8, 2008 (but subsequent to filing of the SEC Report
described in clause (a) above).


 


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


 


“Secured Obligations” means the “Obligations”
as defined in the Guarantee and Collateral Agreement.


 


“Secured Parties” has the meaning set
forth in the Guarantee and Collateral Agreement.


 


“Security Documents” means the
Guarantee and Collateral Agreement, the Foreign Pledge Agreements and each
other security agreement or other instrument or document executed and delivered
pursuant to Section 5.03 or 5.12 to secure any of the Secured Obligations.


 


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


 


“Statutory Reserve Rate” means a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves), expressed as a decimal, established by the Board of Governors to
which the Administrative Agent is subject for eurocurrency funding (currently
referred to as “Eurocurrency Liabilities” in Regulation D of the Board of
Governors).  Such reserve percentages
shall include those imposed pursuant to such Regulation D.  Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such 


 


27

















 


Regulation D or any
comparable regulation.  The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.


 


“Sterling” or “£” means the
lawful currency of the United Kingdom.


 


“Subordinated Indebtedness” of any
Person means any Indebtedness of such Person that is subordinated in right of
payment to any other Indebtedness of such Person.


 


“subsidiary” means, with respect to
any Person (the “parent”) at any date, any Person (a) of which
Equity Interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of
the general partnership interests are, as of such date, owned, controlled or
held, or (b) that is, as of such date, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.


 


“Subsidiary” means any subsidiary of
the Borrower.


 


“Subsidiary Loan Party” means each
Subsidiary that is a party to the Guarantee and Collateral Agreement.


 


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


 


“Swingline Lender” means JPMorgan
Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan” means a Loan made
pursuant to Section 2.04.  Each
Swingline Loan shall be a Federal Funds Loan.


 


“Synthetic Lease” means, as to any
Person, any lease (including leases that may be terminated by the lessee at any
time) of real or personal property, or a combination thereof, (a) that is
accounted for as an operating lease under GAAP and (b) in respect of which
the lessee is deemed to own the property so leased for U.S. Federal income tax
purposes, other than any such lease under which such Person is the lessor.


 


“Synthetic Lease Obligations” means,
as to any Person, an amount equal to the capitalized amount of the remaining
lease payments under any Synthetic Lease (determined, in the case of a
Synthetic Lease providing for an option to purchase the leased property, as if
such purchase were required at the end of the term thereof) that would appear
on a balance sheet of such Person prepared in accordance with GAAP if such
payment obligations were accounted for as Capital Lease Obligations.  For purposes of Section 6.02, a
Synthetic Lease Obligation shall be deemed to be secured by a Lien on the
property being leased and such property shall be deemed to be owned by the
lessee.


 


28

















 


“TARGET” means the Trans-European
Automated Real-time Gross Settlement Express Transfer payment system.


 


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


 


“Transactions” means the execution,
delivery and performance by the Loan Parties of the Loan Documents, the
borrowing of Loans, the issuance of the Letters of Credit and the use of the
proceeds of such Loans and of such Letters of Credit.


 


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


 


“US Borrower”
means any Borrower that is a “United States person” within the meaning of Section 7701(a)(30)
of the Code.


 


“US Dollar”, “US$” or “$”
means the lawful currency of the United States of America.


 


“US Dollar Equivalent” means, on any
date of determination, (a) with respect to any amount denominated in US
Dollars, such amount and (b) with respect to any amount denominated in any
currency other than US Dollars, the equivalent in US Dollars of such amount,
determined by the Administrative Agent pursuant to Section 1.05 using the
Exchange Rate with respect to such currency at the time in effect under the
provisions of such Section.


 


“US Tax Compliance Certificate” has
the meaning assigned to such term in Section 2.16(g).


 


“USA PATRIOT Act” means the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001.


 


“Warrants” means (a) the Seven
Year Warrant dated June 6, 2003, between the Borrower and Credit Suisse
First Boston International, as amended by the Amendment to Seven Year Warrant
dated December 13, 2006, between the Borrower and Credit Suisse
International (f/k/a Credit Suisse First Boston International), (b) the
Warrant Confirmation dated as of June 2, 2005, between the Borrower and
Deutsche Bank AG and (c) any similar instrument issued in connection with
Qualifying Subordinated Indebtedness.


 


“wholly-owned”, when used in reference
to a subsidiary of any Person, means any subsidiary of such Person all the
Equity Interests in which (other than directors’ qualifying shares and other
nominal amounts of Equity Interests that are required to be held by other
Persons under applicable law) are owned, beneficially and of 


 


29

















 


record, by such Person,
another wholly-owned subsidiary of such Person or any combination thereof.


 


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


 


“2010 Subordinated Notes” means the
zero coupon convertible subordinated notes due June 15, 2033, first
putable June 15, 2010, issued by the Borrower under the 2010 Subordinated
Notes Indenture.


 


“2010 Subordinated Notes Indenture”
means the indenture dated as of December 20, 2004, between the Borrower
and U.S. Bank National Association, as Trustee, under which the 2010
Subordinated Notes are outstanding


 


“2015 Subordinated Notes” means the
Borrower’s 2.00% Convertible Senior Subordinated Notes due June 1, 2015,
issued under the Subordinated Notes Indenture.


 


“2015 Subordinated Notes Indenture”
means the Indenture dated June 7, 2005, between the Borrower and U.S. Bank
National Association, as Trustee, under which the 2015 Subordinated Notes are
outstanding.


 


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


 


SECTION 1.03.  Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  The words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all real
and personal, tangible and intangible assets and properties, including cash,
securities, accounts and contract rights. 
The word “law” shall be construed as referring to all statutes, rules,
regulations, codes and other laws (including official rulings and
interpretations thereunder having the force of law or with which affected
Persons customarily comply), and all judgments, orders and decrees, of all
Governmental Authorities.  Unless the
context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document (including this Agreement) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any definition of or reference to any statute, rule or
regulation shall be construed as referring thereto as from time to time
amended, supplemented or otherwise modified (including by succession of
comparable successor laws), (c) any reference herein to any Person shall
be construed to 


 


30

















 


include such Person’s successors and assigns (subject to any
restrictions on assignment set forth herein) and, in the case of any
Governmental Authority, any other Governmental Authority that shall have
succeeded to any or all functions thereof, (d) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof and (e) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement.


 


SECTION 1.04.  Accounting Terms; GAAP; Pro Forma
Calculations.  (a)  Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP as in effect from time to time;
provided that, if the Borrower, by notice to the Administrative Agent,
shall request an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent or
the Required Lenders, by notice to the Borrower, shall request an amendment to
any provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.


 


(b)  All pro  forma
computations required to be made hereunder giving effect to any Material
Acquisition, Material Disposition or Permitted Acquisition shall be calculated
after giving pro  forma effect thereto (and to any other such
transaction consummated since the first day of the period for which such pro
forma computation is being made and on or prior to the date of such
computation) as if such transaction had occurred on the first day of the period
of four consecutive fiscal quarters ending with the most recent fiscal quarter
for which financial statements shall have been delivered pursuant to Section 5.01(a) or
5.01(b) (or, prior to the delivery of any such financial statements,
ending on March 31, 2008), and, to the extent applicable, the historical
earnings and cash flows associated with the assets acquired or disposed of, any
related incurrence or reduction of Indebtedness and any related cost savings,
operating expense reductions and synergies, all in accordance with (and, in the
case of cost savings, operating expense reductions and synergies, to the extent
permitted by) Article 11 of Regulation S-X under the Securities
Act.  If any Indebtedness bears a
floating rate of interest and is being given pro  forma effect,
the interest on such Indebtedness shall be calculated as if the rate in effect
on the date of determination had been the applicable rate for the entire period
(taking into account any Hedging Agreement applicable to such Indebtedness).


 


SECTION 1.05.  Currency Translation.  The Administrative Agent shall determine the
US Dollar Equivalent of any Borrowing denominated in an Alternate Currency as
of the date of the commencement of the initial Interest Period therefor and as
of the date of the commencement of each subsequent Interest Period therefor, in
each case using the Exchange Rate for such currency in relation to US Dollars
in effect on the date that is three Business Days prior to the date on which
the applicable Interest Period shall commence, and each such amount shall be the
US Dollar Equivalent of such 


 


31

















 


Borrowing until the next required calculation thereof pursuant to this
sentence.  The Administrative Agent shall
determine the US Dollar Equivalent of any Letter of Credit denominated in an
Alternate Currency as of the date such Letter of Credit is issued, amended to
increase its face amount, extended or renewed and as of the last Business Day
of each subsequent calendar quarter, in each case using the Exchange Rate for such
currency in relation to US Dollars in effect on the date that is three Business
Days prior to the date on which such Letter of Credit is issued, amended to
increase its face amount, extended or renewed or the last Business Day of such
subsequent calendar quarter, as the case may be, and each such amount shall be
the US Dollar Equivalent of such Letter of Credit until the next required
calculation thereof pursuant to this sentence. 
Notwithstanding the foregoing, for purposes of any determination under Article V,
Article VI (other than Sections 6.12, 6.13 and 6.14) or Article VII
or any determination under any other provision of this Agreement expressly
requiring the use of a current exchange rate, all amounts incurred, outstanding
or proposed to be incurred or outstanding in currencies other than US Dollars
shall be translated into US Dollars at currency exchange rates in effect on the
date of such determination.  For purposes
of Section 6.12, 6.13 and 6.14, amounts in currencies other than US
Dollars shall be translated into US Dollars at the currency exchange rates used
in preparing the Borrower’s annual and quarterly financial statements.


 


SECTION 1.06.  Status of Obligations.  The Loan Documents Obligations and the
Guarantees of the Loan Documents Obligations under the Guarantee and Collateral
Agreement are hereby designated as “Designated Senior Debt” for purposes of the
2010 Subordinated Notes Indenture and the 2015 Subordinated Notes
Indenture.  In the event that the
Borrower or any other Loan Party shall at any time issue or have outstanding
any other Subordinated Indebtedness, the Borrower shall take or cause such
other Loan Party to take all such actions as shall be necessary to cause the
Loan Documents Obligations and the Guarantees of the Loan Documents Obligations
under the Guarantee and Collateral Agreement to constitute senior indebtedness
(however denominated) in respect of such Subordinated Indebtedness and to
enable the Lenders to have and exercise any payment blockage or other remedies
available or potentially available to holders of senior indebtedness under the
terms of such Subordinated Indebtedness. 
Without limiting the foregoing, the Loan Documents Obligations are
hereby designated as “senior indebtedness” and as “designated senior indebtedness”
under and in respect of any indenture or other agreement or instrument under
which such other Subordinated Indebtedness is outstanding and are further given
all such other designations as shall be required under the terms of any such
Subordinated Indebtedness in order that the Lenders may have and exercise any
payment blockage or other remedies available or potentially available to
holders of senior indebtedness under the terms of such Subordinated
Indebtedness.


 


ARTICLE II


 


The Credits


 


SECTION 2.01.  Commitments.  Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans denominated in US Dollars, 


 


32

















 


Euro and Sterling to the Borrower from time to time during the
Availability Period in amounts that will not result at any time in (a) such
Lender’s Revolving Exposure exceeding its Commitment, (b) the aggregate
Revolving Exposures exceeding the aggregate Commitments or (c) that
portion of the aggregate Revolving Exposures attributable to Loans, Letters of
Credit and LC Disbursements denominated in Alternate Currencies exceeding
US$50,000,000.  Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans.


 


SECTION 2.02.  Loans and Borrowings.  (a)  Each Revolving Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Revolving
Loans of the same Type made by the Lenders ratably in accordance with their respective
Commitments.  The failure of any Lender
to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s
failure to make Loans as required.


 


(b)  Subject to Section 2.13, (i) each
Borrowing denominated in US Dollars shall be comprised entirely of LIBOR Loans
or ABR Loans, as the Borrower may request in accordance herewith, (ii) each
Borrowing denominated in Euros shall be comprised entirely of EURIBOR Loans and
(iii) each Borrowing denominated in Sterling shall be comprised entirely
of LIBOR Loans.  Each Swingline Loan
shall be a Federal Funds Loan.  Each
Lender at its option may make any Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.


 


(c)  At the commencement of each
Interest Period for any EURIBOR Borrowing or LIBOR Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum.  At the time that each ABR Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral multiple of
US$500,000 and not less than US$1,000,000; provided that an ABR
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(f).  Borrowings of more than one Type may be
outstanding at the same time; provided that there shall not at any time
be more than five EURIBOR Borrowings and LIBOR Borrowings outstanding at any
time, unless otherwise agreed between the Borrower and the Administrative
Agent.


 


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


 


33

















 


SECTION 2.03. 
Requests for Borrowings. 
To request a Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a EURIBOR Borrowing
or a LIBOR Borrowing, not later than 11:00 a.m., Local Time, three
Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 11:00 a.m., Local Time, on the day of
the proposed Borrowing.  Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or facsimile to the Administrative Agent of an executed
written Borrowing Request.  Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:


 


(i) the
aggregate amount and currency of such Borrowing;


 


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


 


(iii) in
the case of a borrowing denominated in US Dollars, whether such Borrowing is to
be an ABR Borrowing or a LIBOR Borrowing;


 


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


 


(v) except
in the case of any ABR Borrowing requested to finance the reimbursement of an
LC Disbursement as provided in Section 2.05(f), the location and number of
the account of the Borrower to which funds are to be disbursed.


 


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


 


SECTION 2.04.  Swingline Loans.  (a)  Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower denominated in US Dollars from time to time during the Availability
Period in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of the outstanding Swingline
Loans exceeding US$25,000,000 or (ii) the aggregate Revolving Exposure
exceeding the aggregate Commitments; provided that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan.  At the time that each
Swingline Loan is made, such Swingline Loan shall be in an aggregate amount
that is an integral multiple of US$500,000 and not less than US$1,000,000.  Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.


 


34

















 


(b)  To request a Swingline Loan, the
Borrower shall notify the Administrative Agent of such request by telephone not
later than 2:00 p.m., New York City time, on the day of the proposed
Swingline Loan.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or facsimile to the Administrative Agent of an executed written
Borrowing Request.  Each such telephonic
and written Borrowing Request shall specify the requested date (which shall be
a Business Day) and the amount of the requested Swingline Loan and, except in
the case of any Swingline Loan requested to finance the reimbursement of an
LC Disbursement as provided in Section 2.05(f), the location and
number of the account of the Borrower to which funds are to be disbursed.  Promptly following the receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
the Swingline Lender of the details thereof. 
The Swingline Lender shall make each Swingline Loan available to the
Borrower by means of a wire transfer to the account specified in such Borrowing
Request or to an Issuing Bank, as the case may be, by the close of business in
New York City on the requested date of such Swingline Loan.


 


(c)  The Swingline Lender may by written
notice given to the Administrative Agent not later than 10:00 a.m., New
York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding.  Such notice shall specify
the aggregate amount of the Swingline Loans in which Lenders will be required
to participate.  Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender’s Applicable Percentage of such Swingline
Loan or Loans.  Each Lender hereby
absolutely and unconditionally agrees to pay, upon receipt of notice as
provided above, to the Administrative Agent, for the account of the Swingline
Lender, such Lender’s Applicable Percentage of such Swingline Loan or
Loans.  Each Lender acknowledges and
agrees that, in making any Swingline Loan, the Swingline Lender shall be
entitled to rely, and shall not incur any liability for relying, upon the
representation and warranty of the Borrower set forth in Section 4.02,
unless, at least one Business Day prior to the time such Swingline Loan was
made, the Required Lenders shall have notified the Swingline Lender (with a
copy to the Administrative Agent) in writing that, as a result of one or more
events or circumstances described in such notice, one or more of the conditions
precedent set forth in Section 4.02(a) or 4.02(b) would not be
satisfied if such Swingline Loan were then made (in which case the Swingline
Lender shall have no obligation to make such Swingline Loan).  Each Lender further acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or any reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect
to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders pursuant to this
paragraph), and the Administrative Agent shall promptly remit to the Swingline
Lender the amounts so received by it from the Lenders.  The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such


 


35
















 


Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender.  Any amounts received
by the Swingline Lender from the Borrower (or other Person on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders
that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not constitute a Loan and shall not
relieve the Borrower of its obligation to repay such Swingline Loan.


 


SECTION 2.05.  Letters of Credit.  (a)  General.  Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit for its own
account, denominated in US Dollars, Euro or Sterling and in a form reasonably
acceptable to the Administrative Agent and the applicable Issuing Bank, at any
time and from time to time during the Availability Period.  Each Existing Letter of Credit shall be
deemed, for all purposes of this Agreement (including paragraphs (d) and (f) of
this Section) to be a Letter of Credit issued hereunder for the account of the
Borrower.  In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any letter of credit application or other agreement submitted
by the Borrower to, or entered into by the Borrower with an Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.


 


(b)  Notice of
Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
or the amendment, renewal or extension of an outstanding Letter of Credit, the
Borrower shall hand deliver or fax (or transmit by electronic communication, if
arrangements for doing so have been approved by the recipient) to the
applicable Issuing Bank and the Administrative Agent, reasonably in advance of
the requested date of issuance, amendment, renewal or extension, a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the requested date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount and currency of such
Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to enable the applicable Issuing Bank
to prepare, amend, renew or extend such Letter of Credit.  If requested by the applicable Issuing Bank,
the Borrower also shall submit a letter of credit application on the Issuing
Bank’s standard form in connection with any such request.  In the event and to the extent that the
provisions of any such application shall conflict with, or shall otherwise
include representations, warranties, covenants or defaults more restrictive
than those set forth in, this Agreement, the provisions of this Agreement shall
govern and such provisions in such application shall be of no force or
effect.  A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon each issuance,
amendment, renewal or extension of any Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension, 


 


36

















 


(i) the LC Exposure will not exceed US$50,000,000 and (ii) the
aggregate Revolving Exposure will not exceed the aggregate Commitments.  Each Issuing Bank agrees that it shall not
permit any issuance, amendment, renewal or extension of a Letter of Credit to
occur unless it shall have given to the Administrative Agent written notice
thereof required under paragraph (j) of this Section.


 


(c)  Expiration Date.  Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Maturity Date, unless arrangements
mutually satisfactory to the applicable Issuing Bank and the Borrower shall
have been made at the time of issuance, renewal or extension to cash collateralize
such Letter of Credit; provided that any Letter of Credit may contain
customary automatic renewal provisions agreed upon by the Borrower and the
Issuing Bank pursuant to which the expiration date of such Letter of Credit
shall automatically be extended for a period of up to 12 months (but not to a
date later than the date set forth in clause (ii) above), subject to
a right on the part of such Issuing Bank to prevent any such renewal from
occurring by giving notice to the beneficiary in advance of any such renewal.


 


(d)  Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or any Lender, the
Issuing Bank that is the issuer thereof hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Bank, a participation in such Letter
of Credit equal to such Lender’s Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit.  In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of such Issuing Bank, such Lender’s
Applicable Percentage of each LC Disbursement made by such Issuing Bank under
such Letter of Credit and not reimbursed by the Borrower on the date due as
provided in paragraph (f) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason.  Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or any
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.  Each Lender further acknowledges and agrees
that, in issuing, amending, renewing or extending any Letter of Credit, the
applicable Issuing Bank shall be entitled to rely, and shall not incur any
liability for relying, upon the representation and warranty of the Borrower set
forth in Section 4.02, unless, at least one Business Day prior to the time
such Letter of Credit is issued, renewed or extended, the Required Lenders
shall have notified the applicable Issuing Bank (with a copy to the
Administrative Agent) in writing that, as a result of one or more events or
circumstances described in such notice, one or more of the conditions precedent
set forth in Section 4.02(a) or 4.02(b) would not be satisfied
if such Letter of Credit were 


 


37

















 


then issued, amended, renewed or extended (in which case the applicable
Issuing Bank shall have no obligation to issue, renew or extend such Letter of
Credit).


 


(e)  Disbursements.  Each Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit and shall promptly notify the Administrative
Agent and the Borrower by telephone (confirmed by hand delivery or facsimile)
of such demand for payment and whether such Issuing Bank has made or will make
an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


 


(f)  Reimbursements.  If an Issuing Bank shall make an LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement, in the currency thereof, not later than (i) if the
Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m.,
New York City time, on any Business Day, then 12:00 noon, New York City time,
on such Business Day or (ii) otherwise, 12:00 noon, New York City
time, on the Business Day immediately following the day that the Borrower
receives such notice; provided that, if the amount of such LC
Disbursement is denominated in US Dollars and is US$1,000,000 or more, the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.04 that such payment be financed with
an ABR Borrowing or a Swingline Loan and, to the extent so financed, the
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Borrowing or Swingline Loan. 
If the Borrower fails to reimburse any LC Disbursement by the time
specified above, the Administrative Agent shall notify each Lender of such
failure, the payment then due from the Borrower in respect of the applicable LC
Disbursement and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice,
each Lender shall pay to the Administrative Agent its Applicable Percentage of
the amount then due from the Borrower, in the same manner as provided in Section 2.06
with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders pursuant to this
paragraph), and the Administrative Agent shall promptly remit to the applicable
Issuing Bank the amounts so received by it from the Lenders.  Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders
and such Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for an LC Disbursement (other than the
funding of an ABR Borrowing or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


 


(g)  Obligations
Absolute.  The Borrower’s obligation
to reimburse LC Disbursements as provided in paragraph (f) of this Section is
absolute, unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances whatsoever
and irrespective of (i) any lack of 


 


38

















 


validity or enforceability of any Letter of Credit or this Agreement,
or any term or provision thereof or hereof, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by an Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply with the
terms of such Letter of Credit or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this paragraph, constitute a legal or equitable discharge of,
or provide a right of setoff against, the Borrower’s obligations
hereunder.  None of the Administrative
Agent, the Lenders, the Issuing Banks or any of their Related Parties shall
have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit, any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
other act, failure to act or other event or circumstance; provided that
the foregoing shall not be construed to excuse any Issuing Bank from liability
to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Borrower)
suffered by the Borrower that are caused by such Issuing Bank’s failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in
the absence of gross negligence or wilful misconduct on the part of an Issuing
Bank (as determined by a court of competent jurisdiction in a final and
nonappealable judgment), such Issuing Bank shall be deemed to have exercised
care in each such determination.  In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that appear on their
face to be in substantial compliance with the terms of a Letter of Credit, an
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.


 


(h)  Interim Interest.  If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement in full, (i) in case of an LC Disbursement denominated in US
Dollars, at the rate per annum then applicable to ABR Revolving Loans, and (ii) in
the case of an LC Disbursement denominated in any other currency, at the rate
per annum determined by such Issuing Bank (which determination will be
conclusive absent demonstrable error) to represent its cost of funds plus
the Applicable Rate used to determine interest applicable to LIBOR Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (f) of this Section, then Section 2.12(d) shall
apply.  Interest accrued pursuant to this
paragraph shall be paid to the Administrative Agent, for the account of the
applicable Issuing Bank, except that interest accrued on and after the date of
payment by 


 


39

















 


any Lender pursuant to paragraph (e) of this Section to
reimburse the applicable Issuing Bank shall be for the account of such Lender
to the extent of such payment, and shall be payable on demand or, if no demand
has been made, on the date on which the Borrower reimburses the applicable LC
Disbursement in full.


 


(i)  Cash
Collateralization.  If any Event of
Default shall occur and be continuing, on the Business Day that the Borrower
receives notice from the Administrative Agent or the Required Lenders demanding
the deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash in
US Dollars equal to 105% of the LC Exposure as of such date (determined, in the
case of Letters of Credit denominated in Alternate Currencies, on the basis of
Exchange Rates prevailing on such date) plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in
clause (h) or (i) of Article VII.  The Borrower also shall deposit cash
collateral in accordance with this paragraph as and to the extent required by Section 2.10(b).  Each deposit of cash collateral shall be held
by the Administrative Agent as collateral for the payment and performance of
the obligations of the Borrower under this Agreement.  The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account.  The Administrative Agent shall,
to the extent funds in such account shall not be required for application
hereunder, be invested in overnight or short-term Permitted Investments
selected by the Administrative Agent, which investments shall be made at the
Borrower’s risk and expense.  Interest or
profits, if any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Banks for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower
for the LC Exposure at such time or, if the maturity of the Loans has been
accelerated, be applied to satisfy other obligations of the Borrower under this
Agreement.  If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrower within three Business Days after all Events
of Default have been cured or waived.  If
the Borrower is required to provide an amount of cash collateral hereunder
pursuant to Section 2.10(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower as and to the extent that, after
giving effect to such return, the aggregate Revolving Exposures would not
exceed the aggregate Commitment and no Default shall have occurred and be
continuing.


 


(j)  Issuing Bank
Reports to the Administrative Agent. 
Unless otherwise agreed by the Administrative Agent, each Issuing Bank
shall report in writing to the Administrative Agent (i) reasonably prior
to the time that such Issuing Bank issues, amends, renews or extends any Letter
of Credit, the date of such issuance, amendment, renewal or extension, and the
face amount of the Letters of Credit issued, amended, renewed or extended by it
and outstanding after giving effect to such issuance, 


 


40

















 


amendment, renewal or extension (and whether the amounts thereof shall
have changed), (ii) on each Business Day on which such Issuing Bank makes
any LC Disbursement, the date and amount of such LC Disbursement, (iii) on
any Business Day on which the Borrower fails to reimburse an LC Disbursement
required to be reimbursed to such Issuing Bank on such day, the date of such
failure and the amount of such LC Disbursement and (iv) on any other
Business Day, such other information as the Administrative Agent shall reasonably
request as to the Letters of Credit issued by such Issuing Bank.


 


SECTION 2.06.  Funding of Borrowings.  (a)  Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, Local Time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04.  The
Administrative Agent will make such Loans available to the Borrower by promptly
remitting the amounts so received, in like funds, to an account of the Borrower
or, in the case of ABR Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(f), to the Issuing Bank specified
by the Borrower in the applicable Borrowing Request.


 


(b)  Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in
reliance on such assumption, make available to the Borrower a corresponding
amount.  In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent promptly after demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of a payment to be
made by such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation or (ii) in the case of a payment to be made by the
Borrower, the interest rate applicable to ABR Loans.  If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing.


 


SECTION 2.07.  Interest Elections.  (a)  Each Borrowing  initially shall be of the Type and, in the
case of a EURIBOR Borrowing or LIBOR Borrowing, shall have an initial Interest
Period as specified in the applicable Borrowing Request or as otherwise
provided in Section 2.03. 
Thereafter, the Borrower may, in the case of a Borrowing denominated in
US Dollars, elect to convert such Borrowing to a Borrowing of a different Type
or to continue such Borrowing and, in the case of a EURIBOR Borrowing or LIBOR
Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the 


 


41

















 


Lenders, and the Loans comprising each such portion shall be considered
a separate Borrowing.  This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.


 


(b)  To make an election pursuant to
this Section, the Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if the Borrower were requesting a Borrowing of the Type
resulting from such election to be made on the effective date of such
election.  Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or facsimile to the Administrative Agent of an executed written
Interest Election Request.  Each telephonic
and written Interest Election Request shall specify the following information
in compliance with Section 2.02:


 


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


 


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


 


(iii)          in
the case of a borrowing denominated in US Dollars, whether the resulting
Borrowing is to be an ABR Borrowing or a LIBOR Borrowing; and


 


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


 


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


 


(c)  Promptly following
receipt of an Interest Election Request in accordance with this Section, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender’s
portion of each resulting Borrowing.


 


(d)  If the Borrower fails
to deliver a timely Interest Election Request with respect to a EURIBOR
Borrowing or a LIBOR Borrowing and fails, at or prior to the time at which such
Interest Election Request for the continuation of such Borrowing for an
additional Interest Period would be required to be delivered, to deliver a
notice pursuant to Section 2.09 to the effect that the Borrower will repay
such Borrowing at the end of the applicable interest period, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall (i) in the case of a Borrowing denominated in US Dollars,
be converted to an ABR Borrowing and (ii) in the 


 


42

















 


case of a Borrowing denominated in Euro or Sterling, be continued as a
EURIBOR Borrowing or a LIBOR Borrowing, as the case may be, with an interest
period of one month’s duration. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing, (i) no outstanding Borrowing denominated in US
Dollars may be converted to or continued as a LIBOR Borrowing and (ii) unless
repaid, each LIBOR Borrowing denominated in US Dollars shall be converted to an
ABR Borrowing at the end of the Interest Period applicable thereto.


 


SECTION 2.08.  Termination, Reduction and Expansion of
Commitments.  (a)  Unless
previously terminated, the Commitments shall automatically terminate on the
Maturity Date.


 


(b)  The Borrower may at
any time terminate, or from time to time permanently reduce, the Commitments; provided
that (i) each reduction of the Commitments shall be in an amount that is
an integral multiple of US$1,000,000 and not less than US$5,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.10,
the aggregate Revolving Exposures would exceed the aggregate Commitments.


 


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


 


(d)  The Borrower may at any
time and from time to time, by written notice to the Administrative Agent
(which shall promptly deliver a copy to the Lenders) executed by the Borrower
and one or more financial institutions (any such financial institution referred
to in this Section being called an “Increasing Lender”), which may
include any Lender, cause Commitments of the Increasing Lenders to be increased
(or cause the Increasing Lenders to extend new Commitments) in an amount for
each Increasing Lender (which shall not be less than US$5,000,000) set forth in
such notice; provided, that (i) no Lender shall have any obligation
to increase its Commitment pursuant to this paragraph, (ii) all new
Commitments and increases in existing Commitments becoming effective under this
paragraph during the term of this Agreement shall not exceed US$50,000,000 in
the aggregate, (iii) each Increasing Lender, if not 


 


43

















 


already a Lender hereunder, shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each
Increasing Lender, if not already a Lender hereunder, shall become a party to
this Agreement by completing and delivering to the Administrative Agent a duly
executed accession agreement in a form reasonably satisfactory to the
Administrative Agent and the Borrower (an “Accession Agreement”).   New Commitments and increases in Commitments
shall become effective on the date specified in the applicable notices
delivered pursuant to this paragraph. 
Upon the effectiveness of any Accession Agreement to which any
Increasing Lender is a party, (i) such Increasing Lender shall thereafter
be deemed to be a party to this Agreement and shall be entitled to all rights,
benefits and privileges accorded a Lender hereunder and subject to all
obligations of a Lender hereunder and (ii) Schedule 2.01 shall be
deemed to have been amended to reflect the Commitment of such Increasing Lender
as provided in such Accession Agreement. 
Notwithstanding the foregoing, no increase in the Commitments (or in the
Commitment of any Lender) pursuant to this paragraph shall become effective
unless (i) the Administrative Agent shall have received documents
consistent with those delivered under Section 4.01(b) and (c) (in
each case, solely with respect to the Borrower), giving effect to such increase
and (ii) on the effective date of such increase, the representations and
warranties of the Borrower set forth in this Agreement shall be true and
correct in all material respects and no Default shall have occurred and be
continuing, and the Administrative Agent shall have received a certificate to
that effect dated such date and executed by a Financial Officer of the
Borrower.  On the effective date (the “Increase
Effective Date”) of any increase in the Commitments pursuant to this
paragraph (a “Commitment Increase”), (i) the aggregate principal
amount of the Revolving Borrowings outstanding (the “Initial Borrowings”) immediately prior to the Commitment Increase on the
Increase Effective Date shall be deemed to be paid, (ii) each Increasing
Lender that shall have had a Commitment prior to the Commitment Increase shall
pay to the Administrative Agent in same day funds (in the applicable
currencies), an amount equal to the difference between (A) the product of (1) such
Lender’s Applicable Percentage (calculated after giving effect to the
Commitment Increase) multiplied by (2) the amount of each Subsequent
Borrowing (as hereinafter defined) and (B) the product of (1) such
Lender’s Applicable Percentage (calculated without giving effect to the
Commitment Increase) multiplied by (2) the amount of each Initial
Borrowing, (iii) each Increasing Lender that shall not have had a
Commitment prior to the Commitment Increase shall pay to Administrative Agent
in same day funds (in the applicable currencies) an amount equal to the product
of (1) such Increasing Lender’s Applicable Percentage (calculated after
giving effect to the Commitment Increase) multiplied by (2) the amount of
each Subsequent Borrowing, (iv) after the Administrative Agent receives
the funds specified in clauses (ii) and (iii) above, the
Administrative Agent shall pay to each Lender (in the applicable currencies)
the portion of such funds that is equal to the difference between (A) the
product of (1) such Lender’s Applicable Percentage (calculated without
giving effect to the Commitment Increase) multiplied by (2) the amount of
each Initial Borrowing, and (B) the product of (1) such Lender’s
Applicable Percentage (calculated after giving effect to the Commitment
Increase) multiplied by (2) the amount of each Subsequent Borrowing, (v) after
the effectiveness of the Commitment Increase, the Borrower shall be deemed to
have made new Borrowings (the “Subsequent Borrowings”) in amounts (in
the 


 


44

















 


currencies of the Initial Borrowings) equal to the amounts of the
Initial Borrowings and of the Types and for the Interest Periods specified in a
Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03,
(vi) each Lender shall be deemed to hold its Applicable Percentage of each
Subsequent Borrowing (calculated after giving effect to the Commitment
Increase) and (vii) the Borrower shall pay each Lender any and all accrued
but unpaid interest on its Loans comprising the Initial Borrowings.  The deemed payments made pursuant to clause (i) above
shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15
if the Increase Effective Date occurs other than on the last day of the
Interest Period relating thereto.


 


SECTION 2.09.  Repayment of Loans; Evidence of Debt.  (a)  The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Loan of such Lender on the
Maturity Date, and (ii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least three Business Days after such Swingline Loan is
made; provided that on each date on which a Borrowing (other than a
Swing Line Loan) is made, the Borrower shall repay all Swingline Loans that
were outstanding on such date.


 


(b)  The records
maintained by the Administrative Agent and the Lenders shall be prima  facie
evidence, absent demonstrable error, of the existence and amounts of the
obligations of the Borrower in respect of the Loans, LC Disbursements, interest
and fees due or accrued hereunder; provided that the failure of the
Administrative Agent or any Lender to maintain such records or any error
therein shall not in any manner affect the obligation of the Borrower to pay
any amounts due hereunder in accordance with the terms of this Agreement.


 


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


 


SECTION 2.10.  Prepayment of Loans.  (a)  The Borrower shall have the right
at any time and from time to time to prepay any Borrowing in whole or in part,
subject to the requirements of this Section.


 


(b)  If the aggregate
Revolving Exposures shall at any time exceed the aggregate Commitments, then (i) on
the last day of any Interest Period for any EURIBOR Borrowing or LIBOR
Borrowing, and (ii) on each other date on which any ABR Revolving
Borrowing or Swingline Loan shall be outstanding, the Borrower shall prepay
Loans (or, if no Loans are outstanding, deposit cash collateral in an account
with the


 


45
















 


Administrative Agent in accordance with Section 2.05(i)) in an
aggregate amount equal to the lesser of (A) the amount necessary to
eliminate such excess and (B) the amount of the applicable Revolving
Borrowings or Swingline Loans referred to in clause (i) or (ii), as
applicable.  If the aggregate amount of
the Revolving Exposures at any time shall exceed 105% of the aggregate
Commitments, then the Borrower shall, within three Business Days, prepay one or
more Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent in accordance with Section 2.05(i))
in an amount sufficient to eliminate such excess.


 


(c)  Prior to any optional
or mandatory prepayment of Borrowings under this Section, the Borrower shall
specify the Borrowing or Borrowings to be prepaid in the notice of such
prepayment delivered pursuant to paragraph (d) of this Section.


 


(d)  The Borrower shall
notify the Administrative Agent (and, in the case of prepayment of a Swingline
Loan, the Swingline Lender) by telephone (confirmed by hand delivery or
facsimile) of any optional prepayment and, to the extent practicable, any
mandatory prepayment hereunder (i) in the case of prepayment of a EURIBOR
Borrowing or a LIBOR Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., Local Time, one
Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, Local Time, on
the date of prepayment.  Each such notice
shall be irrevocable and shall specify the prepayment date, the principal
amount of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that if a notice of optional prepayment is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with Section 2.08.  Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.


 


SECTION 2.11.  Fees. 
(a)  The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable
Rate on the daily unused amount of the Commitment of such Lender during the
period from and including the date hereof to but excluding the date on which
such Commitment terminates.  Accrued
commitment fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof.  All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).  For purposes of computing commitment fees, a
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Loans and LC Exposure of such Lender (and the Swingline Exposure of
such Lender shall be disregarded for such purpose).


 


46

















 


(b)  The Borrower agrees
to pay (i) to the Administrative Agent for the account of each Lender a
participation fee with respect to its participations in Letters of Credit,
which shall accrue at the Applicable Rate used to determine the interest rate
applicable to LIBOR Revolving Loans on the daily amount of such Lender’s
LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date
to but excluding the later of the date on which such Lender’s Commitment
terminates and the date on which such Lender ceases to have any LC Exposure,
and (ii) to each Issuing Bank for its own account, a fronting fee equal to
0.125% per annum on the face amount of each Letter of Credit issued by it,
which fee shall be payable quarterly in arrears, as well as such Issuing Bank’s
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder.  Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Commitments
terminate and any such fees accruing after the date on which the Commitments
terminate shall be payable promptly on demand. 
Any other fees payable to an Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. 
All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


 


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


 


(d)  All fees payable
hereunder shall be paid on the dates due, in immediately available funds, to
the Administrative Agent (or to an Issuing Bank, in the case of fees payable to
it) for distribution, in the case of commitment fees and participation fees, to
the Lenders entitled thereto.  In the
absence of demonstrable error in the calculation of the amount of any fees
hereunder, fees paid shall not be refundable under any circumstances.


 


SECTION 2.12.  Interest.  (a)  The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.


 


(b)  The Loans comprising
each EURIBOR Borrowing and each LIBOR Borrowing shall bear interest at the
Adjusted EURIBO Rate or the Adjusted LIBO Rate, as the case may be, for the
Interest Period in effect for such Borrowing plus the Applicable Rate.


 


(c)  Each Swingline Loan
shall bear interest at the Federal Funds Rate plus the Applicable Rate.


 


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


 


47

















 


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


 


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


 


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


 


SECTION 2.13.  Alternate Rate of Interest.  If prior to the commencement of any Interest
Period for a EURIBOR Borrowing or a LIBOR Borrowing:


 


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


 


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


 


then the Administrative Agent
shall give notice (which may be telephonic, but shall be promptly confirmed in
writing) thereof to the Borrower and the Lenders as promptly as practicable
and, until the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) if such
Borrowing is denominated in US Dollars, any Borrowing Request or Interest
Election Request that 


 


48

















 


requests the making of such
Borrowing as or the conversion of such Borrowing to, or continuation of such
Borrowing as, a LIBOR Borrowing shall be ineffective, and such Borrowing shall
be continued as an ABR Borrowing, and (ii) if such Borrowing is
denominated in Euro or Sterling, the Borrower and the Administrative Agent
shall determine a rate to be applicable to such Borrowing in lieu of the
Adjusted EURIBO Rate or the Adjusted LIBO Rate in its reasonable discretion
based on market conditions and in consultation with the Borrower and the
Lenders.


 


SECTION 2.14.  Increased Costs.  (a)  If any Change in Law shall:


 


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


 


(ii) subject any Lender or Issuing Bank to (or any increase in) any Other Connection Taxes, except any such
Taxes imposed on or measured by its net income or profits (however denominated) or franchise taxes imposed in lieu of net income or profits taxes, with respect to this Agreement or any other Loan Document, any
Letter of Credit, or any
participation in a Letter of Credit or any Loan made or Letter of Credit
issued, by it; or


 


(iii) impose on any Lender or Issuing Bank or any relevant
interbank market any other condition, cost or expense affecting this Agreement
or EURIBOR Loans or LIBOR Loans made by such Lender or any Letter of Credit or
participation therein;


 


and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any EURIBOR Loan or LIBOR Loan (or of maintaining its obligation to make any
such Loan), to increase the cost to such Lender or Issuing Bank of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or issue any Letter of Credit) or
to reduce the amount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), then,
from time to time upon the written request of such Lender or Issuing Bank,
which request shall set forth in reasonable detail the basis for such request,
the Borrower will pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or Issuing Bank, as
the case may be, for such additional costs or expenses incurred or reduction
suffered.


 


(b)  If any Lender or
Issuing Bank determines that any Change in Law regarding capital requirements
has had or would have the effect of reducing the rate of return on such Lender’s
or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s
holding company, if any, as a consequence of this Agreement, the Commitments of
or the Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by an Issuing Bank, to a level below
that 


 


49

















 


which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s
holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or Issuing Bank’s policies and the policies of such
Lender’s or Issuing Bank’s holding company with respect to capital adequacy),
then, from time to time upon request of such Lender or Issuing Bank, which
request shall set forth in reasonable detail the basis for such request, the
Borrower will pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or Issuing Bank or
such Lender’s or Issuing Bank’s holding company for any such reduction
suffered.


 


(c)  Any Lender or Issuing
Bank requesting compensation under this Section shall deliver a
certificate to the Borrower setting forth the amount or amounts necessary to
compensate such Lender or Issuing Bank or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section, which
certificate shall be conclusive absent demonstrable error.  In determining such additional amounts, each
Lender or Issuing Bank will act in good faith and will use allocation and
attribution methods that it in good faith determines to be reasonable.  The Borrower shall pay such Lender or Issuing
Bank, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


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


 


SECTION 2.15.  Break Funding Payments.  In the event of (a) the payment of any
principal of any EURIBOR Loan or LIBOR Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any EURIBOR Loan or LIBOR Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure
to borrow, convert or continue any EURIBOR Loan or LIBOR Loan on the date
specified in any notice delivered pursuant hereto or (d) the assignment of
any EURIBOR Loan or LIBOR Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event upon written request by such
Lender, which request shall set forth in reasonable detail the basis for such
request.  Such loss, cost or expense to
any Lender shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest that would have accrued
on the principal amount of such Loan had such event not occurred, at the
Adjusted EURIBO Rate or Adjusted LIBO Rate that would have been applicable to
such Loan (but not including the Applicable Rate applicable thereto), for the
period from 


 


50

















 


the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over (ii) the
amount of interest that would accrue on such principal amount for such period at
the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the London interbank market.  Together with the written request required by
the previous sentence, any Lender requesting compensation shall deliver a
certificate to the Borrower setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section, which certificate shall
be conclusive absent demonstrable error. 
The Borrower shall not be required to compensate a Lender pursuant to
this Section for any losses, costs or expenses described in this Section suffered
more than 180 days prior to the date that such Lender notifies the Borrower of
such losses, costs or expenses and of such Lender’s or intention to claim
compensation therefor.  In determining
such additional amounts, each Lender will act in good faith and will use
allocation and attribution methods determined by it in good faith to be
reasonable.  The Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.


 


SECTION 2.16.  Taxes. 
(a)  Payments Free of Taxes. 
Any and all payments by or on account of any obligation of any Loan Party hereunder or under any
other Loan Document shall be made free and clear of and without reduction or
withholding for any Taxes, provided that if any applicable law (as
determined in the good faith discretion of an applicable Withholding Agent (as
defined below)) requires the deduction or withholding of any Tax from any such
payment (including, for the avoidance of doubt, any such deduction or
withholding required to be made by the
applicable Loan Party or the Administrative Agent, or, in the case of
any Lender that is treated as a partnership for US federal income tax purposes,
by such Lender for the account of any of its direct or indirect beneficial
owners), the applicable Loan Party,
the Administrative Agent or the applicable direct or indirect Lender (any such
person a “Withholding Agent”) shall make such deductions and timely pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law and, if such Tax is an Indemnified Tax, then the sum
payable by the applicable Loan Party shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank or its beneficial owner, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made.


 


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


 


(c)  Indemnification by
the Borrower.  The Borrower shall
indemnify the Administrative Agent, each Lender and Issuing Bank, within 10
days after demand therefor, for the full amount of any Indemnified Taxes
(including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable by the Administrative Agent, such Issuing Bank or such Lender or its beneficial owner, as the case may
be, and any reasonable out-of-pocket expenses arising therefrom or with 


 


51

















 


respect thereto, whether or not such Indemnified Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or an Issuing Bank
(with a copy to the Administrative Agent), or by the Administrative Agent on
its own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive
absent demonstrable error.


 


(d)  Indemnification of
the Administrative Agent.  Each
Lender shall indemnify the Administrative Agent, within 10 days after demand
therefor, for the full amount of any Excluded Taxes attributable to such Lender that are payable by the Administrative Agent,
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Excluded Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.  A
certificate as to the amount of such payment or liability delivered to any
Lender by the Administrative Agent shall be conclusive absent demonstrable
error.


 


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


 


(f)  Status of Fee Receivers.  Each Fee Receiver hereby represents that it
is a Permitted Investor and agrees to update Internal Revenue Service Form W-9
(or its successor form) or applicable Internal Revenue Service Form W-8
(or its successor form) upon any change in such Person’s circumstances or if
such form expires or becomes inaccurate or obsolete, and to promptly notify the
Borrower and the Administrative Agent if such Person becomes legally ineligible
to provide such form.


 


(g) 
Status of Lenders. 
Any Foreign Lender that is entitled to an exemption from or reduction of
any applicable withholding tax with respect to payments hereunder or under any
other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate of withholding.  In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements.  Notwithstanding anything
to the contrary in the preceding two sentences, in the case of any withholding tax other than the US
federal withholding tax,  the
completion, execution and submission of such
forms shall not be required if in the Foreign Lender’s judgment such
completion, execution or submission would subject such Foreign Lender to any
material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Foreign Lender.


 


52

















 


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


 


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


 


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


 


(iii) in the case of a
Foreign Lender claiming the benefits of the exemption for portfolio interest
under section 881(c) of the Code, (x) a certificate substantially in
the Form of Exhibit I to the effect that such Foreign
Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of
the Code, (B) a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code, and to the effect that the interest payments
in question are not effectively connected with the United States trade or
business conducted by such Lender (a “US Tax Compliance Certificate”)
and (y) duly completed copies of Internal Revenue Service Form W-8BEN,


 


(iv) to the extent a Foreign
Lender is not the beneficial owner (for example, where the Foreign Lender is a
partnership or participating Lender granting a typical participation), an
Internal Revenue Service Form W-8IMY, accompanied by a Form W-8ECI,
W-8BEN, U.S. Tax Compliance Certificate, Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that, if the Foreign
Lender is a partnership (and not a participating Lender) and one or more
beneficial owners of such Foreign Lender are claiming the portfolio interest
exemption, such Foreign Lender may provide a US Tax Compliance Certificate on
behalf of such beneficial owner(s), or


 


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


 


Each Lender agrees that if any
form or certification it previously delivered by it expires or becomes obsolete
or inaccurate in any respect, it shall update such form or certification or promptly
notify Borrower and the Administrative Agent in writing of its legal inability
to do so.


 


53

















 


(h)  Treatment of
Certain Refunds.  If the
Administrative Agent, an Issuing Bank or a Lender determines, in its sole
discretion, that it has received a refund of any Indemnified Taxes as to which
it has been indemnified pursuant to this Section (including additional
amounts paid by any Loan Party pursuant to this Section), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of
indemnity payments made under this Section with respect to the Indemnified
Taxes giving rise to such refund), net of all out-of-pocket expenses (including
any Taxes) of the Administrative Agent, such Issuing Bank, or such Lender, as
the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided
that such indemnifying party, upon the request of the Administrative Agent,
such Issuing Bank or such Lender, agrees to repay the amount paid over pursuant
to this paragraph (h) (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent,
such Issuing Bank or such Lender in the event the Administrative Agent, such
Issuing Bank or such Lender is required to repay such refund to such
Governmental Authority.  Notwithstanding
anything to the contrary in this paragraph (h), in no event will an Issuing
Bank or any Lender be required to pay any amount to any Loan Party the payment
of which would place such Issuing Bank or such Lender in a less favorable net
after-Tax position than such Issuing Bank or such Lender would have been in if
the indemnification payments or additional amounts giving rise to such refund
had never been paid.  This paragraph
shall not be construed to require the Administrative Agent, an Issuing Bank or
any Lender to make available its Tax returns (or any other information relating
to its Taxes that it deems confidential) to the Borrower or any other Person.


 


(i)  Survival.  Each party’s obligations under this Section shall
survive termination of the Loan Documents and repayment of any obligations
thereunder.


 


SECTION 2.17.  Payments Generally; Pro Rata Treatment;
Sharing of Setoffs.  (a)  The
Borrower shall make each payment required to be made by it hereunder or under
any other Loan Document prior to the time expressly required hereunder or under
such other Loan Document for such payment (or, if no such time is expressly
required, prior to 12:00 noon, Local Time), on the date when due, in
immediately available funds, without setoff or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to such account as may be specified by the Administrative Agent,
except that payments required to be made directly to an Issuing Bank or the
Swingline Lender shall be so made, payments pursuant to Sections 2.14, 2.15,
2.16 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons
specified therein.  The Administrative
Agent shall distribute any such payment received by it for the account of any
other Person to the appropriate recipient promptly following receipt
thereof.  If any payment under any Loan
Document shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension.  All payments hereunder
of principal or interest in respect of any Loan or any LC Disbursement shall,
except as otherwise provided herein, be made in the currency of 


 


54

















 


such Loan or LC Disbursement; all other payments hereunder shall be
made in US Dollars.


 


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


 


(c)  If any Lender shall,
by exercising any right of setoff or counterclaim or otherwise, obtain payment
in respect of any principal of or interest on any of its Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amounts of principal of and accrued interest on their Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements or Swingline Loans to any assignee
or participant, other than to the Borrower, any Subsidiary or any other
Affiliate of any of the foregoing (as to which the provisions of this paragraph
shall apply).  The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


 


(d)  Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or an Issuing Bank hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or an Issuing Bank, as the case may be,
the amount due.  In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the applicable
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the


 


55
















 


Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


(e)  If any Lender shall fail to make
any payment required to be made by it pursuant to Section 2.04(c),
2.05(d), 2.05(f), 2.06(b), 2.16(d), 2.17(d) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.


 


SECTION 2.18.  Mitigation Obligations; Replacement of
Lenders.  (a)  If any Lender
requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or to any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then
such Lender shall use commercially reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign and
delegate its rights and obligations hereunder to another of its offices,
branches or Affiliates if, in the judgment of such Lender, such designation or
assignment and delegation (i) would eliminate or reduce amounts payable
pursuant to Section 2.14 or 2.16, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. 
The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment
and delegation.


 


(b)  If (i) any Lender requests
compensation under Section 2.14, (ii) the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.16, (iii) any Lender
defaults in its obligation to fund Loans hereunder or (iv) any Lender has
failed to consent to a proposed amendment or waiver that under Section 9.02
requires the consent of all the Lenders and with respect to which the Required
Lenders shall have granted their consent or (v) any Lender becomes
insolvent and its assets become subject to a receiver, liquidator, trustee,
custodian or other Person having similar powers, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement and the other
Loan Documents to an Eligible Assignee that shall assume such obligations
(which may be another Lender, if a Lender accepts such assignment and
delegation); provided that (A) the Borrower shall have received the
prior written consent of the Administrative Agent and each Issuing Bank, which
consent shall not unreasonably be withheld, (B) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee or the Borrower, (C) in the case of any such assignment resulting
from a claim for compensation under Section 2.14 or payments required to
be made pursuant to Section 2.16, such assignment will result in a
reduction in such compensation or payments and (D) in the case of any such
assignment resulting from the failure to provide a consent, the assignee shall
have given such consent 


 


56





















 


and, as a result of such assignment and any contemporaneous assignments
and consents, the applicable amendment, waiver, discharge or termination shall
be susceptible of being effected.  A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver or consent by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and
delegation have ceased to apply.  Each
party hereto agrees that an assignment required pursuant to this paragraph may
be effected pursuant to an Assignment and Assumption executed by the Borrower,
the Administrative Agent and the assignee and that the Lender required to make
such assignment need not be a party thereto.


 


ARTICLE III


 


Representations and Warranties


 


The Borrower represents and warrants to the Lenders
that:


 


SECTION 3.01.  Organization; Powers.  The Borrower and each Subsidiary is duly
organized, validly existing and (to the extent the concept is applicable in
such jurisdiction) in good standing under the laws of the jurisdiction of its
organization, has all power and authority and all material Governmental
Approvals required for the ownership and operation of its properties and the conduct
of its business as now conducted and as proposed to be conducted and is
qualified to do business and (to the extent the concept is applicable in such
jurisdiction) is in good standing, in every jurisdiction where the nature of
the business conducted by it makes such qualification necessary and where the
failure to so qualify could reasonably be expected to have a Material Adverse
Effect.


 


SECTION 3.02.  Authorization; Enforceability.  The Transactions to be effected by each Loan
Party are within such Loan Party’s corporate or other organizational powers and
have been duly authorized by all necessary corporate or other organizational
and, if required, stockholder or other equityholder action.  This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of the Borrower
or such Loan Party, as the case may be, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditors’ rights generally and to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.


 


SECTION 3.03.  Governmental Approvals; Absence of
Conflicts.  The Transactions (a) do
not require any consent or approval of, registration or filing with or any
other action by any Governmental Authority, except (i) such as have been
or on the Effective Date will be obtained or made and are (or will on the
Effective Date be) in full force and effect and (ii) filings necessary to
perfect Liens created under the Loan Documents, (b) will not violate any
applicable law, including any order of any Governmental Authority, (c) will
not violate the charter, by-laws or other organizational documents of the
Borrower, any Loan Party or any Material Subsidiary, (d) will not 


 


57





















 


violate or result (alone or with notice or lapse of time, or both) in a
default under any indenture or other agreement or instrument binding upon the
Borrower, any Loan Party or any Material Subsidiary or any of their assets, or
give rise to a right thereunder to require any payment, repurchase or
redemption to be made by the Borrower, any Loan Party or any Material
Subsidiary, or give rise to a right of, or result in, any termination,
cancellation, acceleration or right of renegotiation of any obligation
thereunder, and (e) except for Liens created under the Loan Documents,
will not result in the creation or imposition of any Lien on any asset of the
Borrower, any Loan Party or any Material Subsidiary.


 


SECTION 3.04.  Financial Condition; No Material Adverse
Change.  (a)  The Borrower has
heretofore furnished to the Lenders its consolidated balance sheets and
statements of operations, stockholders’ equity and cash flows (i) as of
and for the fiscal years ended December 31, 2006 and 2007, audited by and
accompanied by the opinion of PricewaterhouseCoopers LLP, independent
registered public accountants, and (ii) as of and for the fiscal quarter
ended  March 31, 2008.  Such financial statements present fairly, in
all material respects, the financial position, results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of certain footnotes in the case of the statements
referred to in clause (ii) above.


 


(b)  Since December 31, 2007, there
has been no event or condition that has resulted, or could reasonably be
expected to result, in a material adverse change in the business, operations or
financial condition of the Borrower and the Subsidiaries, taken as a whole.


 


SECTION 3.05.  Properties.  (a)  The Borrower and each Subsidiary
has good title to, or valid leasehold interests in, all its property material
to its business, except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.


 


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


 


SECTION 3.06.  Litigation and Environmental Matters.  (a)  There are no actions, suits or
proceedings by or before any Governmental Authority or arbitrator pending or,
to the knowledge of the Borrower or any Subsidiary, threatened against or
affecting the Borrower or any Subsidiary (i) that could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (except that no representation is made in this clause (i) as to any
such actions, suits or proceedings the existence of which has been specifically
disclosed in the SEC Reports) or (ii) that involve any of the Loan
Documents or the Transactions.


 


58





















 


(b)  Except with respect to any matters
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, none of the Borrower or any Subsidiary (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law, (ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability (except that no representation is
made in this paragraph (b) as to any such matters the existence of which
has been specifically disclosed in the SEC Reports).


 


SECTION 3.07.  Compliance with Laws and Agreements.  The Borrower and each Subsidiary is in
compliance with all laws, including all orders of Governmental Authorities,
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to
comply, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect (except that no representation is made with
respect to any such failure to comply that has been specifically disclosed in
the SEC Reports).


 


SECTION 3.08.  Investment Company Status.  None of the Borrower or any Subsidiary is an “investment
company” as defined in, or subject to regulation under, the Investment Company
Act of 1940.


 


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


 


SECTION 3.10.  ERISA; Labor Matters.  (a) No ERISA Events have  occurred or are reasonably expected to occur
that could, in the aggregate, reasonably be expected to result in a Material
Adverse Effect.  The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than US$5,000,000 the fair market value of the assets
of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) did not, as of the date or dates
of the most recent financial statements reflecting such amounts, exceed by more
than US$10,000,000 the fair market value of the assets of all such underfunded
Plans.


 


(b) As of the Effective Date, there are
no strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to their knowledge, threatened.  The
hours worked by and payments made to employees of the Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law relating to such
matters.  All material payments due 


 


59

















 


from the Borrower or any
Subsidiary, or for which any claim may be made against the Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as liabilities on the books of the
Borrower or such Subsidiary.  The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement under which the Borrower or any Subsidiary is bound.


 


SECTION 3.11.  Subsidiaries and Joint Ventures.  Schedule 3.11 sets forth, as of the
Effective Date, the name and jurisdiction of organization of, and the
percentage of each class of Equity Interests owned by the Borrower or any
Subsidiary in, (a) each Subsidiary and (b) each joint venture in
which the Borrower or any Subsidiary owns any Equity Interests, and identifies
each Subsidiary Loan Party and each Material Subsidiary.


 


SECTION 3.12.  Disclosure.  The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which the
Borrower or any Subsidiary is subject, and all other matters known to the
Borrower, that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. 
All written or formally presented information, including the
Confidential Information Memorandum, other than any projections and information
of a general economic or general industry nature, furnished by or on behalf of,
the Borrower or any Subsidiary to the Administrative Agent, any of its
Affiliates or any Lender pursuant to or in connection with this Agreement or
any other Loan Document, taken as a whole together with all other written
information so delivered on or prior to any date of determination and all
information contained in regular or periodic reports filed by or on behalf of
the Borrower with the SEC on or prior to such date is (or will when furnished
be) complete and correct in all material respects and does not (or will not
when furnished) contain any untrue statement of material fact or omit to state
a material fact necessary in order to make the statements contained therein not
materially misleading in light of the circumstances under which such statements
are made; provided that, with respect to forecasts or projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed by it to be reasonable
at the time so furnished and, if furnished prior to the Effective Date, as of
the Effective Date (it being understood by the Administrative Agent and the
Lenders that any such projections are subject to significant uncertainties and
contingencies, many of which are beyond the control of the Borrower or its
Subsidiaries, that no assurances can be given that such projections will be
realized and that actual results may differ materially from such projections).


 


SECTION 3.13.  Collateral Matters.  The Guarantee and Collateral Agreement, upon
execution and delivery thereof by the parties thereto, will create in favor of
the Administrative Agent, for the benefit of the Secured Parties, a valid and
enforceable security interest in the Collateral (as defined therein) and (i) when
the Collateral (as defined therein) constituting certificated securities (as
defined in the Uniform Commercial Code) is delivered to the Administrative
Agent, together with instruments of transfer duly endorsed in blank, the
Guarantee and Collateral Agreement will constitute a fully perfected security
interest in all right, title and interest of the 


 


60





















 


pledgors thereunder in such Collateral, prior and superior in right to
any other Person, and (ii) when financing statements in appropriate form
are filed in the applicable filing offices, the security interest created under
the Guarantee and Collateral Agreement will constitute a fully perfected
security interest in all right, title and interest of the Loan Parties in the
remaining Collateral (as defined therein) to the extent perfection can be
obtained by filing Uniform Commercial Code financing statements, prior and
superior to the rights of any other Person, except for rights secured by Liens
permitted by Section 6.02 that are prior by operation of law or contract.


 


SECTION 3.14.  Federal Reserve Regulations.  None of the Borrower or any Subsidiary is
engaged or will engage, principally or as one of its important activities, in
the business of purchasing or carrying margin stock (within the meaning of
Regulation U of the Board of Governors), or extending credit for the purpose of
purchasing or carrying margin stock.  No part
of the proceeds of the Loans will be used, directly or indirectly, to purchase
or carry any margin stock or to refinance any Indebtedness originally incurred
for such purpose, or for any other purpose that entails a violation (including
on the part of any Lender) of any of the regulations of the Board of Governors,
including Regulations U and X.


 


ARTICLE IV


 


Conditions


 


SECTION 4.01. 
Effective Date.  The
obligations of the Lenders to make Loans and of the Issuing Banks to issue
Letters of Credit hereunder shall not become effective until each of the
following conditions shall be satisfied (or waived in accordance with Section 9.02):


 


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


 


(b) The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent, the Lenders and the Issuing Banks and dated the
Effective Date) of each of (i) Sidley Austin LLP, special counsel for the
Borrower, and (ii) local counsel in each jurisdiction of any Foreign
Subsidiary with Equity Interests subject to the Guarantee and Collateral
Requirement (subject to the penultimate paragraph of this Section), in each
case in form and substance reasonably satisfactory to the Administrative
Agent.  The Borrower hereby requests such
counsel to deliver such opinions.


 


(c) The
Administrative Agent shall have received such documents and certificates as the
Administrative Agent may reasonably request relating to the organization,
existence and good standing of each Loan Party, the authorization of the
Transactions and any other legal matters relating to the Loan Parties, the Loan



 


61





















 


Documents or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent.


 


(d) The
Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the chief executive officer or the chief financial officer
of the Borrower, confirming compliance with the conditions set forth in
paragraphs (f) and (j) of this Section and in
paragraphs (a) and (b) of Section 4.02.


 


(e) The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced,
payment or reimbursement of all fees and expenses (including fees, charges and
disbursements of counsel) required to be paid or reimbursed by any Loan Party
under the Commitment Letter, the Fee Letters or any Loan Document.


 


(f) The
Guarantee and Collateral Requirement shall have been satisfied (subject to the
penultimate paragraph of this Section).


 


(g) The
Administrative Agent shall have received a completed Perfection Certificate,
dated the Effective Date and signed by an executive officer or a Financial
Officer of the Borrower, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by Section 6.02
or have been, or substantially contemporaneously with the initial funding of
Loans on the Effective Date will be, released.


 


(h) All
consents and approvals required to be obtained from any Governmental Authority
or other Person in connection with the Transactions shall have been obtained,
and all applicable waiting periods and appeal periods shall have expired, in
each case without the imposition of any burdensome conditions.


 


(i) The
Lenders shall have received (i) the financial statements referred to in Section 3.04
and (ii) annual financial projections for the Borrower and its
consolidated Subsidiaries for the years 2008 through 2011.


 


(j) On
the Effective Date, either (i) the Borrower and the Subsidiaries shall
have no bank credit agreements or similar credit facilities (other than
reimbursement obligations in respect of each of the letters of credit
identified on Schedule 6.01) or (ii) the principal, premium, if any,
interest, fees and other amounts due or outstanding under all bank credit
agreements or similar credit facilities of 
the Borrower and the Subsidiaries shall have been or shall be paid in
full, the commitments thereunder shall have been or shall be terminated and all
guarantees and Liens existing in connection therewith shall have been or shall
be 


 


62





















 


discharged and released, and
the Administrative Agent shall have received reasonably satisfactory evidence
thereof.


 


(k) The
Lenders shall have received all documentation and other information required by
bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the USA PATRIOT
Act.


 


Notwithstanding the foregoing, if the
Borrower shall have used commercially reasonable efforts to procure and
deliver, but shall nevertheless be unable to deliver, any pledge of the Equity
Interests of any Foreign Subsidiary (whether pursuant to the Guarantee and
Collateral Agreement or a Foreign Pledge Agreement) that is required to be
delivered in order to satisfy the requirements of the Guarantee and Collateral
Requirement, such delivery (and the delivery of the related opinion pursuant to
paragraph (b) of this Section) shall not be a condition precedent to the
obligations of the Lenders and the Issuing Banks hereunder on the Effective
Date, but shall be required to be accomplished as provided in Section 5.13.


 


The Administrative Agent shall notify the
Borrower and the Lenders of the Effective Date, and such notice shall be
conclusive and binding.  Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless
each of the foregoing conditions shall be satisfied (or waived in accordance
with Section 9.02) at or prior to 5:00 p.m., New York City time, on August 15,
2008 (and, in the event such conditions shall not have been so satisfied or
waived, the Commitments shall terminate at such time).


 


SECTION 4.02. 
Each Credit Event.  The
obligation of each Lender to make a Loan on the occasion of any Borrowing (other
than a continuation or conversion of any Loan), and of each Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to receipt of
the request therefor in accordance herewith and to the satisfaction of the
following conditions:


 


(a) The
representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit, as applicable, except in the case of any such
representation and warranty that expressly relates to an earlier date, in which
case such representation and warranty shall be true and correct in all material
respects on and as of such earlier date.


 


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


 


On the date of each Borrowing (other than a
continuation or conversion of any Loan) or issuance, amendment, renewal or
extension of any Letter of Credit, the Borrower shall be 


 


63

















 


deemed to have represented and warranted that
the conditions specified in paragraphs (a) and (b) of this Section have
been satisfied and that, after giving effect to such Borrowing, or such
issuance, amendment, renewal or extension of a Letter of Credit, (i) the
aggregate Revolving Exposures shall not exceed the Commitments and (ii) that
portion of the aggregate Revolving Exposures attributable to Loans, Letters of
Credit and LC Disbursements denominated in Alternate Currencies shall not
exceed US$50,000,000.


 


ARTICLE V


 


Affirmative Covenants


 


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


 


SECTION 5.01. 
Financial Statements and Other Information.  The Borrower will furnish to the
Administrative Agent, on behalf of each Lender:


 


(a) within
90 days after the end of each fiscal year of the Borrower (or, if earlier,
by the date that the Annual Report on Form 10-K of the Borrower for such
fiscal year would be required to be filed under the rules and regulations
of the SEC, giving effect to any automatic extension available thereunder for
the filing of such form), its audited consolidated balance sheet and related
consolidated statements of operations, stockholders’ equity and cash flows as
of the end of and for such fiscal year, setting forth in each case in
comparative form the figures for the prior fiscal year, all audited by and
accompanied by the opinion of PricewaterhouseCoopers LLP or another independent
registered public accounting firm of recognized national standing (without a “going
concern” or like qualification or exception and without any qualification or
exception as to the scope of such audit; provided, that if the Borrower
switches from one independent public accounting firm to another and if such
switch has occurred during any fiscal period being audited by such new
accounting firm, the audit report of any such new accounting firm may contain a
qualification or exception as to the scope of such consolidated financial
statements that relates to the period of such fiscal period prior to its
retention) to the effect that such consolidated financial statements present
fairly, in all material respects, the financial position, results of operations
and cash flows of the Borrower and its consolidated Subsidiaries on a
consolidated basis as of the end of and for such year in accordance with GAAP;


 


(b) within
45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower (or, if earlier, by the date that the Quarterly
Report on Form 10-Q of the Borrower for such fiscal quarter would be
required to be filed under the rules and regulations of the SEC, giving
effect to any automatic extension available thereunder for the filing of such
form), its consolidated balance sheet and related consolidated statements of
operations, stockholders’ 


 


64





















 


equity and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the prior fiscal year, all certified by a Financial Officer of the
Borrower in the corresponding Compliance Certificate as presenting fairly, in
all material respects, the financial position, results of operations and cash
flows of the Borrower and its consolidated Subsidiaries on a consolidated basis
as of the end of and for such fiscal quarter and such portion of the fiscal
year in accordance with GAAP, subject to the absence of normal year-end audit
adjustments and the absence of certain footnotes;


 


(c) concurrently
with any delivery of financial statements under clause (a) or (b) above,
a completed Compliance Certificate signed by a Financial Officer of the
Borrower, (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.12, 6.13
and 6.14, (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the consolidated balance sheet of the
Borrower most recently theretofore delivered under clause (a) or (b) above
(or, prior to the first such delivery, referred to in Section 3.04) and,
if any such change has occurred, specifying the effect of such change on the
financial statements (including those for the prior periods) accompanying such
certificate, and (iv) certifying that all notices required to be provided
under Sections 5.03 and 5.04 have been provided;


 


(d) concurrently
with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that audited such financial statements
stating whether it obtained knowledge during the course of its examination of
such financial statements of any Event of Default under Sections 6.12, 6.13 or
6.14 (which certificate may be limited to the extent required by accounting rules or
guidelines);


 


(e) within
90 days after the end of each fiscal year of the Borrower, a certificate
of a Financial Officer or other executive officer of the Borrower setting forth
all Equity Interests in Subsidiaries owned by any Loan Party that, in each
case, (i) if so owned or filed by a Loan Party as of the Effective Date
would have been required to be set forth on the applicable schedule to the
Guarantee and Collateral Agreement pursuant to the terms of such agreement and (ii) have
not been set forth on a certificate previously delivered pursuant to this clause;


 


(f) promptly
after the same become publicly available, copies of all Reports on Form 10-K,
10-Q and 8-K (or any successor or substitute form) filed by  the Borrower or any Subsidiary with the SEC;
and


 


(g) promptly
after any request therefor, such other information regarding the business,
financial condition or operations of the Borrower and its Subsidiaries, taken
as a whole, or compliance with the terms of any Loan


 


65
















 


Document, as may be
reasonably requested by the Administrative Agent or by any Lender through the Administrative
Agent.


 


Information required to be delivered pursuant
to this Section shall be deemed to have been delivered if such
information, or one or more annual, quarterly or other periodic reports
containing such information, shall have been posted by the Administrative Agent
on an IntraLinks or similar site to which the Lenders have been granted access
or shall be available on the website of the SEC at http://www.sec.gov.  Information required to be delivered pursuant
to this Section may also be delivered by electronic communications
pursuant to procedures approved by the Administrative Agent.  In the event any financial statements
delivered under clause (a) or (b) above shall be restated, the
Borrower shall deliver, promptly after such restated financial statements
become available, revised Compliance Certificates with respect to the periods
covered thereby that give effect to such restatement, signed by a Financial
Officer of the Borrower.


 


SECTION 5.02. 
Notices of Material Events. 
The Borrower will furnish to the Administrative Agent prompt written
notice of the following:


 


(a) the
occurrence of any Default;


 


(b) the
filing or commencement of any action, suit or proceeding by or before any
Governmental Authority or arbitrator against or affecting the Borrower or any
Subsidiary that could reasonably be expected to result in a Material Adverse
Effect or that in any manner questions the validity of any Loan Document; and


 


(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of the Borrower and the Subsidiaries in an aggregate amount of US$5,000,000 or
more.


 


Each notice delivered under this Section shall
be accompanied by a statement of a Financial Officer or other executive officer
of the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect
thereto.  Information required to be
delivered pursuant to clause (b) of this Section shall be deemed to
have been delivered if such information, or one or more annual or quarterly or
other periodic reports containing such information, shall have been posted by
the Administrative Agent on an IntraLinks or similar site to which the Lenders
have been granted access or shall be available on the website of the SEC at
http://www.sec.gov.  Information required
to be delivered pursuant to this Section may also be delivered by
electronic communications pursuant to procedures approved by the Administrative
Agent.


 


SECTION 5.03.  Additional Subsidiaries.  (a)  If any Subsidiary is formed or
acquired after the Effective Date, the Borrower will, as promptly as
practicable, and in any event within 30 days (or such longer period as the
Administrative Agent may agree to in writing), notify the Administrative Agent
thereof and cause the Guarantee and 


 


66





















 


Collateral Requirement to be satisfied with respect to such Subsidiary
(if it is a Designated Subsidiary) and with respect to any Equity Interests in
such Subsidiary owned by any Loan Party (if it is a Foreign Subsidiary that is
a Material Subsidiary).


 


(b)  The Borrower may designate a
Domestic Subsidiary not meeting the criteria set forth in clause (b) of
the definition of the term “Designated Subsidiary” as a Designated Subsidiary; provided
that (i) such Subsidiary shall have delivered to the Administrative Agent
a supplement to the Guarantee and Collateral Agreement, in the form specified
therein, duly executed by such Subsidiary, (ii) the Borrower shall have
delivered a certificate of an executive officer or a Financial Officer of the
Borrower to the effect that, after giving effect to any such designation and
such Subsidiary becoming a Subsidiary Loan Party hereunder, the representations
and warranties set forth in this Agreement and the other Loan Documents as to
such Subsidiary shall be true and correct and no Default shall have occurred or
be continuing, and (iii) such Subsidiary shall have delivered to the
Administrative Agent documents and opinions requested by the Administrative
Agent of the type referred to in paragraphs (b) and (c) of Section 4.01.


 


SECTION 5.04.  Information Regarding Collateral.  The Borrower will furnish to the
Administrative Agent prompt written notice of any change (i) in the legal
name of any Loan Party, as set forth in its organizational documents, (ii) in
the jurisdiction of organization or the form of organization of any Loan Party
(including as a result of any merger or consolidation), (iii) in the
location of the chief executive office of any Loan Party or (iv) in the
case of any Loan Party that shall have pledged any Equity Interests under the
Guarantee and Collateral Agreement, in the organizational identification
number, if any, or the Federal Taxpayer Identification Number of such Loan
Party.  The Borrower agrees not to effect
or permit any change referred to in the preceding sentence unless all filings
have been made under the Uniform Commercial Code or otherwise that are required
in order for the Administrative Agent to continue at all times following such
change to have a valid, legal and perfected security interest in all the
Collateral.


 


SECTION 5.05.  Existence; Conduct of Business.  The Borrower and each Subsidiary will do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business taken as a whole; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution permitted
under Section 6.03; and provided, further that neither the
Borrower nor any of its Subsidiaries shall be required to preserve any right,
license, permit, privilege, franchise, patent, copyright, trademark or trade
name if the Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of business of the Borrower or
such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such Subsidiary or the
Lenders.


 


SECTION 5.06.  Payment of Taxes.  The Borrower and each Subsidiary will pay its
Tax liabilities before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by
appropriate 


 


67





















 


proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP, (c) such
contest effectively suspends collection of the contested obligation and the
enforcement of any Lien securing such obligation and (d) the failure to
make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.


 


SECTION 5.07.  Maintenance of Properties.  The Borrower and each Subsidiary will keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.


 


SECTION 5.08.  Insurance.  The Borrower and each Subsidiary will maintain,
with financially sound and reputable insurance companies, insurance in such
amounts (with no greater risk retention) and against such risks as is
customarily maintained by companies of established repute engaged in the same
or similar businesses operating in the same or similar locations and which are
similarly situated to the Borrower; provided, that the Borrower and each
Subsidiary may self-insure to the extent customary for companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations and which are similarly situated to the Borrower.


 


SECTION 5.09.  Books and Records; Inspection and Audit
Rights.  The Borrower and each
Subsidiary will keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and applicable law are made of all
material financial dealings and transactions in relation to its business and
activities.  The Borrower and each
Subsidiary will permit the Administrative Agent or any Lender (pursuant to a
request made through the Administrative Agent), at reasonable times upon
reasonable prior notice (but not more than once annually if no Default shall
exist), (a) to visit and inspect its properties, (b) to examine and
make extracts from its books and records and (c) to discuss its
operations, business affairs, assets, liabilities (including contingent
liabilities) and financial condition with its officers and, in the presence of
officers of the Borrower, with its independent accountants, in each case at
mutually convenient times.


 


SECTION 5.10.  Compliance with Laws.  The Borrower and each other Subsidiary will
comply with all laws, including all orders of any Governmental Authority,
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


 


SECTION 5.11.  Use of Proceeds and Letters of Credit.  The proceeds of the Revolving Loans and
Swingline Loans and the Letters of Credit will be used only for working capital
and other general corporate purposes of the Borrower and the Subsidiaries,
including acquisitions in any of the Borrower’s lines of business or in lines
of business that are reasonably related or complementary thereto.


 


SECTION 5.12.  Further Assurances.  The Borrower and each other Loan Party will
execute any and all further documents, financing statements, agreements and 


 


68





















 


instruments, and take all such further actions (including the filing
and recording of financing statements and other documents), that may be
required under any applicable law, or that the Administrative Agent may
reasonably request, to cause the Guarantee and Collateral Requirement to be and
remain satisfied at all times or otherwise to effectuate the provisions of the
Loan Documents, all at the expense of the Loan Parties.  The Borrower will provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.


 


SECTION 5.13.  Certain Post-Closing Collateral
Obligations.  As promptly as
practicable, and in any event within 30 days, after the Effective Date,  the Borrower and each other Loan Party will
deliver to the Administrative Agent any pledge of Equity Interests in any
Foreign Subsidiary (and all the related opinions) that would have been required
to be delivered on the Effective Date but for the penultimate paragraph of Section 4.01,
in each case except to the extent otherwise agreed by the Administrative Agent
pursuant to its authority as set forth in the definition of the term “Guarantee
and Collateral Requirement”.


 


ARTICLE VI


 


Negative Covenants


 


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


 


SECTION 6.01. 
Indebtedness; Certain Equity Securities.  (a)  None of the Borrower or any
Subsidiary will create, incur, assume or permit to exist any Indebtedness, except:


 


(i)             Indebtedness
created under the Loan Documents;


 


(ii)          Indebtedness
existing on the date hereof and set forth on Schedule 6.01 and Refinancing
Indebtedness in respect thereof;


 


(iii)       the Warrants,
to the extent they constitute Disqualified Equity Interests;


 


(iv)      Indebtedness of the Borrower
to any Subsidiary or of any Subsidiary to the Borrower or any other Subsidiary;
provided that (A) such Indebtedness shall not have been transferred
or pledged to any other Person, (B) any such Indebtedness owing by any
Loan Party shall be subordinated to the Loan Documents Obligations on terms
customary for intercompany subordinated Indebtedness, as reasonably determined
by the Administrative Agent, and (C) any such Indebtedness of any
Subsidiary 


 


69





















 


that is not a Loan Party to
any Loan Party shall be incurred in compliance with Section 6.04;


 


(v)              Guarantees
incurred in compliance with Section 6.04(e);


 


(vi)           Indebtedness of
the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations, Synthetic Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets, and Refinancing Indebtedness
in respect thereof; provided that (A) such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (vi) shall not exceed
US$40,000,000 at any time outstanding;


 


(vii)        Indebtedness of
any Person that becomes a Subsidiary (or of any Person not previously a
Subsidiary that is merged or consolidated with or into a Subsidiary in a
transaction permitted hereunder) after the date hereof, or Indebtedness of any
Person that is assumed by any Subsidiary in connection with an acquisition of
assets by such Subsidiary in a Permitted Acquisition, and Refinancing
Indebtedness in respect thereof; provided that (A) such
Indebtedness exists at the time such Person becomes a Subsidiary (or is so
merged or consolidated) or such assets are acquired and is not created in
contemplation of or in connection with such Person becoming a Subsidiary (or
such merger or consolidation) or such assets being acquired and (B) 
neither the Borrower nor any Subsidiary (other than such Person or the
Subsidiary with which such Person is merged or consolidated or that so assumes
such Person’s Indebtedness) shall Guarantee or otherwise become liable for the
payment of such Indebtedness;


 


(viii)     Indebtedness
owed in respect of any overdrafts and related liabilities arising from
treasury, depository and cash management services or in connection with any
automated clearing-house transfers of funds;


 


(ix)             Qualifying
Subordinated Indebtedness; provided that after giving effect to the
incurrence thereof (A) the Borrower’s Leverage Ratio shall not exceed 3.75
to 1.00 and (B) the Borrower’s Senior Leverage Ratio shall not exceed 2.00
to 1.00;


 


(x)                Indebtedness
under performance bonds, surety bonds, letter of credit obligations to provide
security for worker’s compensation claims and bank overdrafts, in each case,
incurred in the ordinary course of business;


 


(xi)             Indebtedness of
the Borrower and its Subsidiaries owing to the seller in any Permitted
Acquisition so long as such Indebtedness (A) is 


 


70





















 


unsecured and subordinated
to the Loan Documents Obligations on a basis reasonably satisfactory to the Administrative
Agent and (B) does not, when taken together with all other indebtedness
incurred pursuant to this Section 6.01(a)(xi), exceed more than
$10,000,000 at any time outstanding; and


 


(xii)
other Indebtedness; provided that after giving effect to the incurrence
thereof, (A) the Borrower’s Leverage Ratio shall not exceed 3.50 to 1.00
and (B) the Borrower’s Senior Leverage Ratio shall not exceed 1.75 to
1.00.


 


(b) None of the Borrower or any
Subsidiary will permit Priority Indebtedness (including any such Indebtedness
permitted under paragraph (a) of this Section 6.01) at any time to
exceed US$40,000,000.


 


SECTION 6.02. 
Liens.  None of the
Borrower or any Subsidiary will create, incur, assume or permit to exist any
Lien on any asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:


 


(a)          Liens created
under the Loan Documents;


 


(b)         Permitted
Encumbrances;


 


(c)          any Lien on any
asset of the Borrower or any Subsidiary existing on the date hereof and set
forth on Schedule 6.02; provided that (A) such Lien shall not
apply to any other asset of the Borrower or any Subsidiary and (B) such
Lien shall secure only those obligations that it secures on the date hereof or,
with respect to any such obligations that shall have been extended, renewed or
refinanced in accordance with Section 6.01, Refinancing Indebtedness in
respect thereof;


 


(d)         any Lien
existing on any asset prior to the acquisition thereof by the Borrower or any
Subsidiary or existing on any asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a Subsidiary; provided
that (A) such Lien is not created in contemplation of or in connection
with such acquisition or such Person becoming a Subsidiary, as the case may be,
(B) such Lien shall not apply to any other asset of the Borrower or any
Subsidiary and (C) such Lien shall secure only those obligations that it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be, or, with respect to any such obligations that
shall have been extended, renewed or refinanced in accordance with Section 6.01,
Refinancing Indebtedness in respect thereof;


 


(e)          Liens on fixed
or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (A) such Liens secure Indebtedness
permitted by clause (a)(vi) of Section 6.01, (B) such Liens
and the Indebtedness secured thereby are incurred prior to or within
180 days after such acquisition or 


 


71





















 


the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets and (D) such Liens shall not apply to any other asset of the
Borrower or any Subsidiary;


 


(f)            in connection
with the sale or transfer of any assets in a transaction permitted under Section 6.05,
customary rights and restrictions contained in agreements relating to such sale
or transfer pending the completion thereof;


 


(g)         in the case of
any Subsidiary that is not a wholly-owned Subsidiary, any put and call
arrangements related to its Equity Interests set forth in its organizational
documents or any related joint venture or similar agreement;


 


(h)         Liens on assets
of Foreign Subsidiaries customarily granted in connection with financing
transactions in the respective jurisdictions of such Subsidiaries; provided
that such Liens shall secure only Indebtedness or other obligations of such
Foreign Subsidiaries permitted hereunder; and


 


(i)             other Liens
securing Indebtedness in an amount that will not result in a violation of Section 6.01(b).


 


SECTION 6.03.  Fundamental Changes; Business Activities.  (a)  None of the Borrower or any
Subsidiary will merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) any Subsidiary may
merge into the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Person may merge into or consolidate with any
Subsidiary in a transaction in which the surviving entity is a Subsidiary (and,
if any party to such merger or consolidation is a Subsidiary Loan Party, is a
Subsidiary Loan Party), (iii) any Subsidiary may merge into or consolidate
with any Person in a transaction permitted under Section 6.05 in which the
surviving entity is not a Subsidiary and (iv) any Subsidiary may liquidate
or dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger or
consolidation involving a Person that is not a wholly-owned Subsidiary
immediately prior to such merger shall not be permitted unless it is also
permitted by Section 6.04.


 


(b)  None of the Borrower or any
Subsidiary will engage to any material extent in any business other than
businesses of the type conducted by the Borrower and the Subsidiaries on the
date hereof and businesses incidental or reasonably related or similar or complementary
thereto or reasonable extensions thereof.


 


(c)  The Borrower will not permit any
Person other than the Borrower, or one or more of its subsidiaries that is not
a CFC, to own any issued or outstanding Equity Interests in any Domestic
Subsidiary.


 


72





















 


SECTION 6.04.  Investments, Loans, Advances, Guarantees
and Acquisitions.  None of the
Borrower or any Subsidiary will purchase, hold, acquire (including pursuant to
any merger or consolidation with any Person that was not a wholly-owned
Subsidiary prior thereto) or make any Investment in any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
all or substantially all the assets of any other Person or of a business unit,
division, product line (including rights in respect of any drug or other
pharmaceutical product) or line of business of any other Person (including
through any exclusive long-term license of rights to a drug or other product
line), or assets acquired other than in the ordinary course of business that,
following the acquisition thereof, would constitute a substantial portion of
the assets of the Borrower and the Subsidiaries, taken as a whole, except:


 


(a) cash
and other Permitted Investments;


 


(b) Investments
existing on the date hereof and set forth on Schedule 6.04;


 


(c) investments
by the Borrower and the Subsidiaries in Equity Interests in their subsidiaries;
provided that (i) such subsidiaries are Subsidiaries prior to the
making of such investments, and (ii) the aggregate amount of all
investments by Loan Parties in, and loans and advances by Loan Parties to, and
Guarantees by Loan Parties of Indebtedness and other obligations of,
Subsidiaries that are not Loan Parties made after the date hereof (other than
the conversion of any intercompany account or other obligation owed by any
Foreign Subsidiary to a Loan Party into the Equity Interests of such Foreign
Subsidiary), in each case made in reliance on this clause (c) and the
following clauses (d) and (e) of this Section, shall not exceed
US$200,000,000 at any time outstanding;


 


(d) loans
or advances made by the Borrower or any Subsidiary to any Subsidiary; provided
that (i) the Indebtedness resulting therefrom is permitted by Section 6.01(a)(iv) and
(ii) the amount of such loans and advances made by Loan Parties to
Subsidiaries that are not Loan Parties shall be subject to the limitation set
forth in clause (c) above;


 


(e) Guarantees
by the Borrower or any Subsidiary of Indebtedness or other obligations of the
Borrower or any Subsidiary; provided that (i) a Subsidiary that has
not Guaranteed the Secured Obligations pursuant to the Guarantee and Collateral
Agreement shall not Guarantee any Indebtedness or other payment obligation of
any Loan Party, and (ii) the aggregate amount of Indebtedness and other
payment obligations (other than in respect of any overdrafts and related
liabilities arising in the ordinary course of business from treasury,
depository and cash management services or in connection with any automated
clearing-house transfer of funds) of Subsidiaries that are not Loan Parties
that is Guaranteed by any Loan Party shall be subject to the limitation set
forth in clause (c) above;


 


(f) Permitted
Foreign Loans;


 


73





















 


(g)         transfers of
intellectual property to Foreign Subsidiaries, the Equity Interests of which
are directly owned by or on behalf of any Loan Party and are pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement;


 


(h)         Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;


 


(i)             Investments
made as a result of the receipt of non-cash consideration from a sale,
transfer, lease or other disposition, or an exclusive license, of any asset in
compliance with Section 6.05;


 


(j)             Investments in
the form of Hedging Agreements permitted by Section 6.07;


 


(k)          payroll, travel
and similar advances to directors and employees of the Borrower or any
Subsidiary to cover matters that are expected at the time of such advances to
be treated as expenses for accounting purposes and that are made in the
ordinary course of business;


 


(l)             loans or
advances to directors and employees of the Borrower or any Subsidiary made in
the ordinary course of business; provided that the aggregate amount of
such loans and advances outstanding at any time shall not exceed US$2,500,000;


 


(m)       Permitted Acquisitions;


 


(n)         acquisitions of
Equity Interests that would constitute Permitted Acquisitions but for the fact
that the Persons in which such Equity Interests are acquired do not become
wholly owned Subsidiaries of the Borrower; provided, that the aggregate
consideration paid in all such acquisitions made under this clause (n) after
the date hereof shall not exceed US$30,000,000;


 


(o)         the creation or
formation of new Subsidiaries with no significant assets or operations for the
purpose of effecting acquisitions referred to in the preceding clauses (m) and
(n);


 


(p)         transfers of
rights with respect to one or more products or technologies under development
to joint ventures with third parties or to other entities where the Borrower or
a Subsidiary retains rights to acquire such joint ventures or other entities or
otherwise repurchase such products or technologies; and


 


(q)         other
Investments and acquisitions; provided that, (A) at the time each
such Investment or acquisition is purchased, made or otherwise acquired, no
Event of Default shall have occurred and be continuing or would result
therefrom and (B) the amount of such Investment, or the aggregate
consideration paid in connection with such acquisition, together with the
aggregate amount, determined 


 


74





















 


as of such time, of all
other Investments purchased, made or otherwise acquired, and the aggregate
amount of all consideration and such other amounts paid in connection with all
other acquisitions made, in reliance on this clause (q) shall not
exceed US$15,000,000 in the aggregate.


 


None of the Borrower or any Subsidiary will (i) forgive,
cancel or convert to an Equity Interest in the obligor thereunder any
promissory note evidencing a Permitted Foreign Loan that is pledged under the
Guarantee and Collateral Agreement (except upon the payment in full of the
obligations evidenced thereby), (ii) transfer its interest in any
Permitted Foreign Loan to any Person other than the Borrower or a Subsidiary
Loan Party or (iii) engage in asset transfers that would materially impair
the ability of the obligor on any Permitted Foreign Loan to perform its payment
obligations under such Permitted Foreign Loan.


 


SECTION 6.05. 
Asset Dispositions.  None
of the Borrower or any Subsidiary will sell, transfer, lease or otherwise
dispose of, or exclusively license, any asset, including any Equity Interest
owned by it, nor will any Subsidiary issue any additional Equity Interest in
such Subsidiary (other than to the Borrower or any Subsidiary in compliance
with Section 6.04), except:


 


(a) sales,
transfers and other dispositions of inventory, used or surplus equipment, cash
and Permitted Investments in the ordinary course of business;


 


(b) sales,
transfers, leases and other dispositions to the Borrower or any Subsidiary; provided
that (i) any such sales, transfers, leases or other dispositions involving
a Subsidiary that is not a Loan Party shall be made in compliance with
Sections 6.04 and 6.09 and (ii) Equity Interests in a Domestic Subsidiary
may not be transferred to a Foreign Subsidiary;


 


(c) the
discount or sale, in each case without recourse and in the ordinary course of
business, of receivables more than 90 days overdue and arising in the ordinary
course of business, but only in connection with the compromise or collection
thereof consistent with customary industry practice (and not as part of any
bulk sale or financing of receivables):


 


(d) leases,
subleases or licenses of real property to other Persons not materially
interfering with the business of the Borrower or any Subsidiary; and


 


(e) sales,
transfers, leases and other dispositions, and exclusive licenses, of assets
that are not permitted by any other clause of this Section; provided
that the aggregate fair market value of all assets sold, transferred, leased or
otherwise disposed of, and of all assets exclusively licensed, in reliance on
this clause (c) shall not at the time of and after giving effect to
any such transaction exceed 10% of Consolidated Net Tangible Assets at the end
of the most recent fiscal quarter of the Borrower for which financial
statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or,
prior to the first delivery of any such financial


 


75




















 


statements, as
of the end of the fiscal quarter of the Borrower ended March 31, 2008).


 


Notwithstanding the foregoing,
no such sale or transfer of any Equity Interests in any Subsidiary shall be
permitted unless (i) such Equity Interests constitute all the Equity
Interests in such Subsidiary held by the Borrower and the Subsidiaries and (ii) immediately
after giving effect to such transaction, the Borrower and the Subsidiaries
shall otherwise be in compliance with Section 6.04.


 


SECTION 6.06.  Sale/Leaseback Transactions.  None of the Borrower or any Subsidiary will
enter into any Sale/Leaseback Transaction unless (a) the sale or transfer
of the property thereunder is permitted by Section 6.05, (b) any
Capital Lease Obligations and Synthetic Lease Obligations arising in connection
therewith are permitted by Section 6.01 and (c) any Liens arising in
connection therewith (including Liens deemed to arise in connection with any
such Capital Lease Obligations and Synthetic Lease Obligations) are permitted
by Section 6.02.


 


SECTION 6.07.  Hedging Agreements.  None of the Borrower or any Subsidiary will
enter into any Hedging Agreement, except (a) Hedging Agreements entered
into to hedge or mitigate risks to which the Borrower or any Subsidiary has
actual exposure (other than in respect of Equity Interests or Indebtedness of
the Borrower or any Subsidiary)  and (b) Hedging Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
the Borrower or any Subsidiary.


 


SECTION 6.08.  Restricted Payments; Certain Payments of
Indebtedness.  (a)  None of the
Borrower or any Subsidiary will declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that (i) the Borrower may
declare and pay dividends or make other Restricted Payments with respect to its
Equity Interests payable solely in additional Equity Interests of the Borrower
permitted hereunder, (ii) the Borrower may repurchase Equity Interests
upon the exercise of stock options if such Equity Interests represent a portion
of the exercise price of such options, (iii) the Borrower may make cash
payments in lieu of the issuance of fractional shares in connection with the
exercise of warrants, options or other securities convertible into or
exchangeable for Equity Interests in the Borrower, (iv) the Borrower may
make Restricted Payments pursuant to and in accordance with stock option plans
or other benefit plans or agreements for directors, officers or employees of
the Borrower and the Subsidiaries, and (v) the Borrower may make
additional Restricted Payments so long as at the time of and after giving
effect thereto and to any related incurrences of Indebtedness, (A) no
Default shall have occurred and be continuing, (B) the Borrower’s Leverage
Ratio shall not exceed 3.50 to 1.00 and (C) the Borrower’s Senior Leverage
Ratio shall not exceed 1.75 to 1.00.


 


76

















 


(b)  None of the Borrower or any
Subsidiary will make or agree to pay or make, directly or indirectly, any
payment or other distribution (whether in cash, securities or other property)
of or in respect of principal of or interest on any Subordinated Indebtedness,
or any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any Subordinated Indebtedness, except:


 


(i)             regularly scheduled interest and principal
payments as and when due in respect of any Subordinated Indebtedness, other
than payments prohibited by the subordination provisions thereof;


 


(ii)          refinancings of Subordinated Indebtedness to
the extent permitted by Section 6.01;


 


(iii)       (A) payments made with respect to the 2010
Subordinated Notes upon the exercise (x) by the Borrower of any redemption
rights with respect thereto, (y) by holders thereof of conversion rights
with respect thereto or (z) by holders thereof of their right to require
the repurchase of such Notes in accordance with the provisions of the 2010
Subordinated Notes Indenture, (B) payments required to be made with
respect to the 2015 Subordinated Notes upon the exercise by holders thereof of
conversion rights with respect thereto and (C) any other similar payments
required to be made in connection with any other Qualifying Subordinated
Indebtedness upon the exercise by holders thereof of conversion rights with
respect thereto; and


 


(iv)      payments made pursuant to consensual exchange
agreements between the Borrower and any noteholder (A) in cash or Equity
Interests of the Borrower with respect to the 2010 Subordinated Notes and (B) in
Equity Interests of the Borrower with respect to the 2015 Subordinated Notes or
any other Qualifying Subordinated Indebtedness.


 


SECTION 6.09.  Transactions with Affiliates.  None of the Borrower or any Subsidiary will
sell, lease, license or otherwise transfer any assets to, or purchase, lease,
license or otherwise acquire any assets from, or otherwise engage in any other
transactions with, any Person known to the Borrower to be an Affiliate of the
Borrower, except (a) transactions in the ordinary course of business that
are at prices and on terms and conditions not less favorable to the Borrower or
such Subsidiary than those that would prevail in arm’s-length transactions with
unrelated third parties, (b) transactions between or among the Loan
Parties not involving any other Affiliate, (c) any Restricted Payment
permitted by Section 6.08, (d) compensation and indemnification of,
and other employment arrangements with, directors, officers and employees of
the Borrower or any Subsidiary entered in the ordinary course of business and (e) loans
and advances permitted under clauses (k) and (l) of Section 6.04.


 


77

















 


SECTION 6.10.  Restrictive Agreements.  None of the Borrower or any Subsidiary will,
directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any other Subsidiary to create, incur or permit to
exist any Lien upon any of its assets to secure any Secured Obligations or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to its Equity Interests or to make or repay loans or advances to the Borrower
or any Subsidiary or to Guarantee Indebtedness of the Borrower or any
Subsidiary; provided that (i) the foregoing shall not apply to (A) restrictions
and conditions imposed by law or by any Loan Document, (B) restrictions
and conditions existing on the date hereof identified on Schedule 6.10
(but shall apply to any amendment or modification materially expanding the
scope of any such restriction or condition), (C) restrictions and
conditions imposed by agreements relating to Indebtedness of any Subsidiary in
existence at the time such Subsidiary became a Subsidiary (but shall apply to
any amendment or modification materially expanding the scope of, any such
restriction or condition), provided that such restrictions and
conditions apply only to such Subsidiary, (D) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided that such restrictions and conditions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder, (E) restrictions
imposed by any amendment or refinancings that are otherwise permitted by the
Loan Documents or the contracts, instruments or obligations referred to in
clause (C), provided that such amendments or refinancings do not materially
expand the scope of any such restriction or condition and (F) in the case
of any Subsidiary that is not a wholly-owned Subsidiary, customary restrictions
and conditions imposed by its organizational documents or any related joint
venture or similar agreement, provided that such restrictions and
conditions apply only to such Subsidiary and to any Equity Interests in such
Subsidiary; and (ii) clause (a) of the foregoing shall not apply
to (A) restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to assets securing such Indebtedness, (B) restrictions
or conditions imposed by any agreement relating to Indebtedness of Foreign
Subsidiaries permitted by this Agreement or (C) customary ratable security
requirements imposed by any agreement relating to Indebtedness of Domestic
Subsidiaries permitted by this Agreement or (D) customary provisions in
leases, subleases and other agreements restricting the assignment or sublease
thereof.


 


SECTION 6.11.  Amendment of Subordinated Indebtedness.  None of the Borrower or any Subsidiary will
amend, modify or waive any of its rights under any agreement or instrument
governing or evidencing any Subordinated Indebtedness to the extent such
amendment, modification or waiver could reasonably be expected to be adverse in
any material respect to the Lenders.


 


SECTION 6.12.  Interest Expense Coverage Ratio.  The Borrower will not permit the ratio as of
the last day of any fiscal quarter of (a) Consolidated EBITDA minus
Capital Expenditures to (b) Consolidated Cash Interest Expense for the
period of four consecutive fiscal quarters then ending to be less than 2.50 to
1.00.


 


78

















 


SECTION 6.13.  Leverage Ratio.  The Borrower will not permit the Leverage
Ratio as of the last day of any fiscal quarter to exceed 3.75 to 1.00.


 


SECTION 6.14.  Senior Leverage Ratio.  The Borrower will not permit the Senior
Leverage Ratio as of the last day of any fiscal quarter to exceed 2.00 to 1.00.


 


SECTION 6.15.  Change in Fiscal Year.  Permit the Borrower’s fiscal year to end on
any date other than December 31.


 


ARTICLE VII


 


Events of Default


 


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


 


(a) the Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise or shall fail to pay any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, and, solely in the case of any such failure  to pay any reimbursement obligation in
respect of any LC Disbursement, such failure shall continue unremedied for a
period of one Business Day;


 


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


 


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


 


(d) The Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.05 (with respect to
the existence of the Borrower) or 5.11 or in Article VI;


 


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


 


79

















 


(f) The Borrower or any Subsidiary shall fail to make any
payment (whether of principal, interest or otherwise) in respect of any
Material Indebtedness when and as the same shall become due and payable (or
within any applicable grace period);


 


(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its
or their behalf, or, in the case of any Hedging Agreement, the applicable
counterparty, to cause such Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity or, in the case of any Hedging Agreement, to cause the termination
thereof; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the assets securing such Indebtedness;


 


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


 


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


 


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


 


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


 


80

















 


such judgment;
or one or more judgments for injunctive relief shall be rendered against the
Borrower, any Subsidiary or any combination thereof that, in the opinion of the
Required Lenders, could, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; provided, that any such
amount shall be calculated after deducting from the sum so payable any amount
of such judgment or order that is covered by a valid and binding policy of
insurance in favor of the Borrower or such Subsidiary (but only if the
applicable insuror shall have been advised of such judgment and of the intent
of the Borrower or such Subsidiary to make a claim in respect of any amount
payable by it in connection therewith and such insuror shall not have disputed
coverage);


 


(l)             one or more ERISA Events shall have
occurred that, in the opinion of the Required Lenders, could, individually or
in the aggregate, reasonably be expected to result in a Material Adverse
Effect;


 


(m)       any Lien purported to be created under any
Security Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on any material Collateral, with the priority
required by the applicable Security Document, except (i) as a result of
the sale, transfer or release of the applicable Collateral in a transaction
permitted under the Loan Documents, (ii) as a result of the expiration or
termination of such Security Document in accordance with its terms or (iii) as
a result of the Administrative Agent’s failure to maintain possession of any
stock certificate, promissory note or other instrument delivered to it under
the Guarantee and Collateral Agreement;


 


(n)         any Guarantee purported to be created under
any Loan Document shall cease to be, or shall be asserted by any Loan Party not
to be, in full force and effect, except upon the consummation of any
transaction permitted under this Agreement as a result of which the Subsidiary
Loan Party providing such Guarantee ceases to be a Subsidiary or upon the
termination of such Loan Document in accordance with its terms;


 


(o)         the Borrower or any Subsidiary shall have
received a notice, order or judgment from or of a Governmental Authority that
temporarily or permanently suspends any material portion of its operations (due
to a violation of applicable law or otherwise) where such suspension could
reasonably be expected to result in a Material Adverse Effect; or


 


(p)         a Change in Control shall occur;


 


then, and in every such event
(other than an event with respect to the Borrower described in clause (h) or
(i) of this Article), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower (which may be telephonic, but shall be
promptly confirmed in writing), take either or both of the following actions,
at the same or different times:  (i) terminate the Commitments,
and thereupon the Commitments shall terminate immediately, (ii) declare
the Loans then outstanding to be due and payable in whole (or 


 


81

















 


in part, in which case any
principal not so declared to be due and payable may thereafter be declared to
be due and payable), and thereupon the principal of the Loans so declared to be
due and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower hereunder, shall become due and payable
immediately, and (iii) require the deposit of cash collateral in respect
of LC Exposure as provided in Section 2.05(i), in each case without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in the case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate, the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower hereunder, shall immediately and automatically
become due and payable and the deposit of such cash collateral in respect of LC
Exposure shall immediately and automatically become due, in each case without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.


 


ARTICLE VIII


 


The Administrative Agent


 


Each of the Lenders and the
Issuing Banks hereby irrevocably appoints the entity named as Administrative
Agent in the heading of this Agreement to serve as administrative agent,
collateral agent and trustee under the Loan Documents, and authorizes the
Administrative Agent to take such actions and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental
thereto.  The provisions of this Article are
solely for the benefit of the Administrative Agent, the Lenders and the Issuing
Banks, and none of the Borrower or any other Loan Party shall have any rights
as a third party beneficiary of any such provisions.


 


The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender or Issuing Bank as any other Lender and may exercise the
same as though it were not the Administrative Agent, and 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.


 


The Administrative Agent shall
not have any duties or obligations except those expressly set forth in the Loan
Documents.  Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or to exercise any
discretionary power, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in 


 


82

















 


the Loan
Documents), provided that the Administrative Agent shall not be required
to take any action that, in its opinion, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law, and (c) except
as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower, any Subsidiary or any other
Affiliate of any of the foregoing that is communicated to or obtained by the
Person serving as Administrative Agent or any of its Affiliates in any
capacity.  The Administrative Agent shall
not be liable for any action taken or not taken by it with the consent or at
the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith to be necessary, under the circumstances as provided in Section 9.02)
or in the absence of its own gross negligence, bad faith or wilful
misconduct.  The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower, a Lender
or an Issuing Bank, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.  Notwithstanding
anything herein to the contrary, the Administrative Agent shall not have any
liability arising from any confirmation of the Revolving Exposure or the
component amounts thereof.


 


The Administrative Agent shall
be entitled to rely, 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 (including, if applicable,
a Financial Officer of such Person).  The
Administrative Agent also may rely, and shall not incur any liability for
relying, upon any statement made to it orally or by telephone and believed by
it to be made by the proper Person (including, if applicable, a Financial
Officer of such Person).  The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.


 


The Administrative Agent may
perform any of and all 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 of and all their
duties and exercise their rights and powers through their respective Related
Parties.  The exculpatory provisions of
this Article shall apply to any such sub-agent and to the Related 


 


83

















 


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


 


Subject to the appointment and
acceptance of a successor Administrative Agent as provided in this paragraph,
the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Banks and the Borrower.  Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor.  If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank.  Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents.  The fees
payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed by the Borrower and
such successor.  After the Administrative
Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 9.03 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.


 


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


 


Each Lender, by delivering its
signature page to this Agreement and funding its Loans on the Effective
Date, or delivering its signature page to an Assignment and Assumption
pursuant to which it shall become a Lender hereunder, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan Document and
each other document required to be delivered to, or be approved by or
satisfactory to, the Administrative Agent or the Lenders on the Effective Date.


 


Notwithstanding anything herein
to the contrary, neither the Arrangers nor any Person named on the cover page of
this Agreement as a Syndication Agent or a 


 


84

















 


Documentation
Agent shall have any duties or obligations under this Agreement or any other
Loan Document (except in its capacity, as applicable, as a Lender), but all
such Persons shall have the benefit of the indemnities provided for hereunder.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01.  Notices.  (a)  Except in the case of notices and
other communications expressly permitted to be given by telephone (and subject
to paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
fax, as follows:


 


(i)             if to the Borrower, to it at Cephalon, Inc.,
41 Moores Road, Frazer, Pennsylvania 19355, Attention of J. Kevin Buchi,
Executive Vice President and Chief Financial Officer (Fax No. (610)
344-7563);


 


(ii)          if to the Administrative Agent, JPMCB in its
capacity as an Issuing Bank or the Swingline Lender:


 


(A) in the case of any notice related to a Loan or Borrowing
denominated in US Dollars or a Letter of Credit, or any notice that does not
relate to a particular Loan or Borrowing, to JPMorgan Chase Bank, N.A., Loan
and Agency Services Group, 10 South Dearborn, 7th Floor, Chicago, Illinois
60603, Attention of Sharon Bosch (Fax No. (312) 385-7107), with a copy to
JPMorgan Chase Bank, N.A., 270 Park Avenue, New York, New York 10017, Attention
of James A. Knight (Fax No. (646) 534-3081); and


 


(B) in the case of any notice related to a Loan or Borrowing
denominated in Euro or Sterling, to J. P. Morgan Europe Limited, Loan and
Agency Services Group, 125 London Wall, 9th Floor, London EC2Y 5AJ United
Kingdom, Attention of Ching Loh (Fax No. 44 -207-777-2360), with a copy to
the address provided under clause (A) above; and


 


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


 


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


 


85
















 


(b)  Notices and other
communications to the Lenders and the Issuing Banks hereunder may be delivered
or furnished by electronic communications (including email and Internet and
intranet websites) pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices under Article II
to any Lender if such Lender has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic
communication.  Any notices or other communications
to the Administrative Agent or the Borrower may be delivered or furnished by
electronic communications pursuant to procedures approved by the recipient
thereof prior thereto; provided that approval of such procedures may be
limited or rescinded by any such Person by notice to each other such Person.


 


(c)  Any party hereto may
change its address or fax number for notices and other communications hereunder
by notice to the other parties hereto. 
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.


 


SECTION 9.02.  Waivers; Amendments.  (a)  No failure or delay by the
Administrative Agent any Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of the Administrative Agent, the Issuing Banks and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have.  No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, the execution and delivery of this Agreement, the making of a Loan
or issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the time.


 


(b)  None of this
Agreement, any other Loan Document or any provision hereof or thereof may be
waived, amended or modified except, in the case of this Agreement, pursuant to
an agreement or agreements in writing entered into by the Borrower, the
Administrative Agent and the Required Lenders and, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into
by the Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; provided
that (i) any provision of this Agreement or any other Loan Document may be
amended by an agreement in writing entered into by the Borrower and the
Administrative Agent to cure any ambiguity, omission, defect or inconsistency
so long as, in each case, such amendment does not adversely affect the rights
of any Lender or any Issuing Bank; and (ii) no such agreement shall (A) increase
the Commitment of any Lender without the written consent of such Lender, (B) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent 


 


86

















 


of each Lender affected thereby, (C) postpone
the scheduled maturity date of any Loan, or the required date of reimbursement
of any LC Disbursement, or any date for the payment of any interest or
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (D) change Section 2.17(b) or
2.17(c) in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender, (E) change
any of the provisions of this Section or the percentage set forth in the
definition of the term “Required Lenders” or any other provision of any Loan
Document specifying the number or percentage of Lenders required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender, (F) release
all or substantially all the Subsidiary Loan Parties from their Guarantees
under the Guarantee and Collateral Agreement (except as expressly provided in Section 9.14),
or limit their liability in respect of such Guarantees, without the written
consent of each Lender, or (G) release all or substantially all the
Collateral from the Liens of the Security Documents without the written consent
of each Lender; provided  further that no such agreement shall
amend, modify, extend or otherwise affect the rights or obligations of the
Administrative Agent, the Issuing Banks or the Swingline Lender without the
prior written consent of the Administrative Agent, the Issuing Banks or the
Swingline Lender, as the case may be.


 


SECTION 9.03.  Expenses; Indemnity; Damage Waiver.  (a)  
The Borrower shall pay (i) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of a single law firm
acting as counsel for the Administrative Agent and, in connection with pledges
of Equity Interests in Foreign Subsidiaries, such local counsel as the
Administrative Agent may deem advisable, in connection with the structuring,
arrangement and syndication of the credit facilities provided for herein, the
preparation, execution, delivery and administration of the Commitment Letter,
the Fee Letters, this Agreement, the other Loan Documents and any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable and documented out-of-pocket expenses incurred by any Issuing Bank
in connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder and (iii) all documented
out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank
or any Lender, including the fees, charges and disbursements of any outside
counsel for any of the foregoing, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.


 


(b)  The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender,
each Issuing Bank, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”), against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, penalties,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for 


 


87

















 


any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of (i) the
structuring, arrangement and the syndication of the credit facilities provided
for herein, the preparation, execution, delivery and administration of the
Commitment Letter, the Fee Letters, this Agreement, the other Loan Documents or
any other agreement or instrument contemplated hereby or thereby, the
performance by the parties to the Commitment Letter, the Fee Letters, this
Agreement or the other Loan Documents of their obligations thereunder or the
consummation of the Transactions or any other transactions contemplated
thereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by an Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or Release of Hazardous Materials on any property
currently or formerly owned or operated by the Borrower or any Subsidiary, or
any Environmental Liability related in any way to the Borrower or any
Subsidiary, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and whether initiated against or by the
Borrower or any other party to the Commitment Letter, the Fee Letters, this
Agreement or any other Loan Document, any Affiliate of any of the foregoing or
any third party (and regardless of whether any Indemnitee is a party thereto); provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence, bad faith or wilful
misconduct of such Indemnitee or from a material breach by such Indemnitee of
its agreements under the Loan Documents. 
This paragraph shall not require indemnification for Taxes other than
any Taxes that represent losses or damages arising from non-Tax claims.


 


(c)  To the extent the
Borrower fails to pay any amount required to be paid by it under paragraph (a) or
(b) of this Section to the Administrative Agent (or any sub-agent
thereof), any Issuing Bank, the Swingline Lender or any Related Party of any of
the foregoing, each Lender severally agrees to pay to the Administrative Agent
(or any such sub-agent), any Issuing Bank, the Swingline Lender or such Related
Party, as the case may be, such Lender’s pro rata share (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or such
sub-agent), any Issuing Bank or the Swingline Lender in its capacity as such,
or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), any Issuing Bank or the Swingline
Lender in such capacity.  For purposes
hereof, a Lender’s “pro rata share” shall be determined based upon its share of
the sum of the total Revolving Exposures and unused Commitments at the time (or
most recently outstanding and in effect).


 


(d)  To the extent
permitted by applicable law, the Borrower shall not assert or permit any of its
Affiliates or Related Parties to assert, and each hereby waives, any claim
against any Indemnitee (i) for any damages arising from the use by others
of information or other materials obtained through telecommunications,
electronic or other 


 


88

















 


information transmission systems (including
the Internet), or (ii) on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.


 


(e)  All amounts due under
this Section shall be payable promptly after written demand therefor.


 


SECTION 9.04.  Successors and Assigns.  (a)  The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
an Issuing Bank that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance
with this Section.  Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of any of the foregoing) any legal or equitable right, remedy or claim
under or by reason of this Agreement.


 


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


 


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


 


(B) the Administrative Agent; and


 


(C) in the case of any assignment of all or a portion of a
Commitment or any Lender’s obligations in respect of its LC Exposure, the
applicable Issuing Bank.


 


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


 


(A) except in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender’s Commitment or Loans, the amount of the Commitment or
Loans of the assigning 


 


89

















 


Lender subject
to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than US$5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consents; provided that no such consent
of the Borrower shall be required if an Event of Default has occurred and is
continuing;


 


(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement;


 


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


 


(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its
Related Parties or its securities) will be made available and who may receive
such information in accordance with the assignee’s compliance procedures and
applicable law, including Federal, State and foreign securities laws.


 


(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(v) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.14, 2.15, 2.16 and 9.03).


 


(iv) The Administrative Agent shall maintain at one of its offices
a copy of each Assignment and Assumption delivered to it and records of the
names and addresses of the Lenders, and the Commitment of, and principal amount
of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Banks and
the Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms 


 


90

















 


hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.  The Register shall be
available for inspection by the Borrower, any Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.


 


(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee’s completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in this Section and
any written consent to such assignment required by this Section, the
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. 
No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.  Each assignee, by its execution and delivery
of an Assignment and Assumption, shall be deemed to have represented to the
assigning Lender and the Administrative Agent that such assignee is an Eligible
Assignee.


 


(c)  Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries or any Person that would be a
Fee Receiver that is not a Permitted Investor) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing
to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the Borrower, the Administrative Agent and the Lenders
and Issuing Banks shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement
and (iv) any Person that would be a Fee Receiver may not be a Participant
unless such Person is a Permitted Investor.  For
the avoidance of doubt, each Lender shall be responsible for the indemnity
under Section 2.16(d) with respect to any payments made by such
Lender to its Participant(s).  Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any  provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver referred to in the first proviso in Section 9.02(b) that
affects such Participant.  Subject to
paragraph (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14 or 2.16  (subject to the requirements and limitations
therein)  to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. 
To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 9.08  as though it
were a Lender, provided such Participant shall be subject to Section 2.17(b) and
(c) as though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as an agent of the Borrower, maintain a
register on which it enters the name and address of each Participant and the
principal amounts (and 


 


91

















 


stated interest) of each participant’s
interest in the Loans or other obligations under this Agreement (the “Participant
Register”).  The entries in the
Participant Register shall be conclusive absent demonstrable error, and such
Lender shall treat each person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement notwithstanding
any notice to the contrary.  A Participant shall not be entitled to receive
any greater payment under Section 2.14 or 2.16 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 Borrower’s prior written consent. 
A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.16 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.16(g) as
though it were a Lender.


 


(d)  Any Lender may at any
time pledge or assign a security interest in all or any portion of its rights
under this Agreement to secure obligations of such Lender, including any pledge
or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


SECTION 9.05.  Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of the Loans and issuance of the
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, any Issuing
Bank, any Lender or any of their respective Affiliates may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any Loan Document was executed and delivered or any credit was extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan, any LC Disbursement or any fee or other
amount payable under this Agreement is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or been
terminated.  Notwithstanding the
foregoing or anything else to the contrary set forth in this Agreement, in the
event that, in connection with the replacement in full of the credit facilities
provided for herein, an Issuing Bank shall have provided to the Administrative
Agent a written consent to the release of the Lenders from their obligations
hereunder with respect to any Letter of Credit issued by an Issuing Bank
(whether as a result of the obligations of the Borrower in respect of such
Letter of Credit having been collateralized in full by a deposit of cash with
such Issuing Bank, or being supported by a letter of credit that names such
Issuing Bank as the beneficiary thereunder, or otherwise), then from and after
such time such Letter of Credit shall cease to be a “Letter of Credit”
outstanding hereunder for all purposes of this Agreement and the other Loan Documents,
and the Lenders shall be deemed to have no participations in such Letter of
Credit, and no obligations with respect thereto, under 


 


92

















 


Section 2.05(d) or (f).  The provisions of Sections 2.14, 2.15,
2.16, 2.17(e) and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.


 


SECTION 9.06.  Counterparts; Integration; Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof (but do not supersede any provisions of the Commitment
Letter, the Fee Letters or any separate letter agreements with respect to fees
payable to the Administrative Agent or an Issuing Bank that do not by the terms
of such documents terminate upon the effectiveness of this Agreement, all of
which provisions shall remain in full force and effect).  Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page of this Agreement by facsimile or other electronic imaging
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


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


 


SECTION 9.08.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each Issuing Bank, and each Affiliate of any
of the foregoing, is hereby authorized at any time and from time to time, to
the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in
whatever currency) or other amounts at any time held and other obligations (in
whatever currency) at any time owing by such Lender or such Issuing Bank, or by
such an Affiliate, to or for the credit or the account of the Borrower against
any of and all the obligations then due of the Borrower now or hereafter
existing under this Agreement held by such Lender or such Issuing Bank,
irrespective of whether or not such Lender or such Issuing Bank shall have made
any demand under this Agreement.  The
rights of each Lender and each Issuing Bank, and each Affiliate of any of the
foregoing, under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, such Issuing Bank or such
Affiliate may have.


 


93

















 


SECTION 9.09.  Governing Law; Jurisdiction; Consent to
Service of Process.  (a)  This Agreement
shall be construed in accordance with and governed by the law of the State of
New York.


 


(b)  Each party to this
Agreement hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement or any
other Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in
such Federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, any Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against the Borrower or any of its properties in the
courts of any jurisdiction.


 


(c)  Each party to this
Agreement hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in
paragraph (b) of this Section. 
Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


(d)  Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 9.01.  Nothing in
this Agreement or any other Loan Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.


 


SECTION 9.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


94

















 


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


 


SECTION 9.12.  Confidentiality.  Each of the Administrative Agent, the Lenders
and the Issuing Banks agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
Related Parties, including accountants, legal counsel and other agents and
advisors, it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential, (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable law or by any
subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies under this
Agreement or any other Loan Document or any suit, action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing
confidentiality undertakings substantially similar to those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its Related Parties) to any swap or
derivative transaction relating to the Borrower or any Subsidiary and its
obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Lender, any Issuing Bank or any Affiliate of any of
the foregoing on a nonconfidential basis from a source other than the
Borrower.  For purposes of this Section, “Information”
means all information received from the Borrower relating to the Borrower or
any Subsidiary or their businesses, other than any such information that is
available to the Administrative Agent, any Lender or any Issuing Bank on a
nonconfidential basis prior to disclosure by the Borrower; provided
that, in the case of information received from the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


SECTION 9.13.  Interest Rate Limitation.  Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts that are treated as interest on such
Loan under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) that may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the
interest and Charges payable to


 


95
















 


such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.


 


SECTION 9.14.  Release of Liens and Guarantees.  A Subsidiary Loan Party shall automatically
be released from its obligations under the Loan Documents upon the consummation
of any transaction permitted by this Agreement as a result of which such
Subsidiary Loan Party ceases to be a Subsidiary; provided that, if so
required by this Agreement, the Required Lenders shall have consented to such
transaction and the terms of such consent shall not have provided
otherwise.  Upon any sale or other
transfer by any Loan Party (other than to the Borrower or any Subsidiary or any
of their Related Parties) of any Collateral in a transaction permitted under
this Agreement, or upon the effectiveness of any written consent to the release
of the security interest created under any Security Document in any Collateral
pursuant to Section 9.02, the security interests in such Collateral
created by the Security Documents shall be automatically released.  In connection with any termination or release
pursuant to this Section, the Administrative Agent shall execute and deliver to
any Loan Party, at such Loan Party’s expense, all documents that such Loan
Party shall reasonably request to evidence such termination or release.  Any execution and delivery of documents pursuant
to this Section shall be without recourse to or warranty by the
Administrative Agent.


 


SECTION 9.15.  USA PATRIOT Act Notice.  Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant
to the requirements of the USA PATRIOT Act it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with such Act.


 


SECTION 9.16.  No Fiduciary Relationship.  The Borrower, on behalf of itself and its
subsidiaries, agrees that in connection with all aspects of the transactions
contemplated hereby and any communications in connection therewith, the
Borrower, the Subsidiaries and their Affiliates, on the one hand, and the
Administrative Agent, the Lenders and their Affiliates, on the other hand, will
have a business relationship that does not create, by implication or otherwise,
any fiduciary duty on the part of the Administrative Agent, the Lenders or
their Affiliates, and no such duty will be deemed to have arisen in connection
with any such transactions or communications.


 


SECTION 9.17.  Non-Public Information.  (a)  Each Lender acknowledges that all
information furnished to it pursuant to this Agreement by the Borrower on its
behalf and relating to the Borrower, the Subsidiaries or their businesses may
include material non-public information concerning  the Borrower and the Subsidiaries and their
securities, and confirms that it has developed compliance procedures regarding
the use of material non-public information and that it will handle such
material non-public information in accordance with such procedures and
applicable law, including Federal, state and foreign securities laws.


 


96





















 


All such information,
including requests for waivers and amendments, furnished by Holdings, the
Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement will be syndicate-level information, which may
contain material non-public information concerning the Borrower and the
Subsidiaries and their securities. 
Accordingly, each Lender represents to the Borrower and the
Administrative Agent that it has identified in its Administrative Questionnaire
a credit contact who may receive information that may contain material non-public
information in accordance with its compliance procedures and applicable law,
including Federal, state and foreign securities laws.


 


97

















 


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


 


	
   

  	
  CEPHALON, INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/ J. Kevin Buchi

  
	
   

  	
   

  	
  Name: J. Kevin Buchi

  
	
   

  	
   

  	
  Title: Executive Vice
  President and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  individually and as Administrative Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/ James A. Knight

  
	
   

  	
   

  	
  Name: James A. Knight

  
	
   

  	
   

  	
  Title: Vice President

  



 


98

















 


	
   

  	
  SIGNATURE
  PAGE TO THE CREDIT AGREEMENT

  
	
   

  	
   

  	
  OF
  CEPHALON, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.:

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/ Joseph L. Corah

  
	
   

  	
   

  	
  Name: Joseph L. Corah

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  



 

















 


	
   

  	
  SIGNATURE
  PAGE TO THE CREDIT AGREEMENT

  
	
   

  	
   

  	
  OF
  CEPHALON, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG NEW YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/ Ming K. Chu

  
	
   

  	
   

  	
  Name: Ming K. Chu

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/ Heidi Sandquist

  
	
   

  	
   

  	
  Name: Heidi Sandquist

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  SIGNATURE
  PAGE TO THE CREDIT AGREEMENT

  
	
   

  	
   

  	
  OF
  CEPHALON, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BARCLAYS BANK PLC.:

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/ Nicholas Bell

  
	
   

  	
   

  	
  Name: Nicholas Bell

  
	
   

  	
   

  	
  Title: Director

  



 

















 


	
   

  	
  SIGNATURE
  PAGE TO THE CREDIT AGREEMENT

  
	
   

  	
   

  	
  OF
  CEPHALON, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL
  ASSOCIATION:

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/ John M. Fessick

  
	
   

  	
   

  	
  Name: John M. Fessick 

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  



 

















 


	
   

  	
  SIGNATURE
  PAGE TO THE CREDIT AGREEMENT

  
	
   

  	
   

  	
  OF
  CEPHALON, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CITIZEN’S BANK OF
  PENNSYLVANIA:

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/ [illegible]

  
	
   

  	
   

  	
  Name: [illegible]

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  



 

















 


	
   

  	
  SIGNATURE
  PAGE TO THE CREDIT AGREEMENT

  
	
   

  	
   

  	
  OF
  CEPHALON, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK, NATIONAL
  ASSOCIATION:

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Christopher T. Kordes

  
	
   

  	
   

  	
  Name: Christopher T.
  Kordes

  
	
   

  	
   

  	
  Title: Senior Vice
  President