Exhibit 10.1


 


FIRST
AMENDMENT TO CREDIT AGREEMENT


 


FIRST AMENDMENT, dated as of April 29,
2005 (this “Amendment”), to that
certain Credit Agreement, dated as of April 30, 2004 (the “Credit Agreement”), by and among Hospira, Inc.,
a Delaware corporation (the “Borrower”),
the banks and financial institutions listed on the signature pages hereof
(collectively, the “Lenders”),
Citigroup Global Markets Inc., ABN AMRO Incorporated and Morgan Stanley Senior
Funding, Inc. (“MSSF”) as
joint lead bookrunners and joint lead arrangers, ABN AMRO Bank N.V. and MSSF as
joint syndication agents, JPMorgan Chase Bank, N.A. and Bank of America, N.A.
as co-documentation agents and Citicorp North America, Inc. as
administrative agent for the Lenders (in such capacity, the “Administrative Agent”).


 


PRELIMINARY
STATEMENTS


 


WHEREAS,
the Borrower has requested that the Requisite Lenders agree to amend the Credit
Agreement as set forth below; and


 


WHEREAS,
subject to the terms and conditions of this Amendment, the Requisite Lenders have
agreed to amend the Credit Agreement as set forth below.


 


NOW, THEREFORE,
in consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged) the parties hereby agree as follows:


 


SECTION 1.                                Defined
Terms.  Except as otherwise defined
in this Amendment, terms defined in the Credit Agreement are used herein as
used therein.


 


SECTION 2.                                Amendments
to Credit Agreement.  Effective as of
the date hereof, subject to the satisfaction of the conditions precedent set
forth in Section 3 of this Amendment, the Credit Agreement is
hereby amended in its entirety as set forth in Exhibit A hereto.


 


SECTION 3.                                Conditions
Precedent to Effectiveness of this Amendment.  This Amendment shall be effective on the date on which all of
the following conditions precedent have been satisfied or waived:


 


(a)                                  The Administrative Agent shall
have received a counterpart of this Amendment, executed and delivered by a duly
authorized officer of each of (i) the Borrower and (ii) each of the
Lenders constituting the Requisite Lenders;


 


(b)                                 The Borrower shall have paid all
fees and expenses of the Administrative Agent, including the reasonable fees
and expenses of counsel to the Administrative Agent; and


 


(c)                                  After giving effect to the
Amendment, no Potential Event of Default or Event of Default shall have
occurred and be continuing.


 





















 


SECTION 4.                                Representations and
Warranties.


 


(a)                                  Each
of the representations and warranties made by the Borrower in or pursuant to
the Loan Documents are true, correct and complete in all material respects on
and as of the date hereof as if made as of the date hereof, except to the
extent such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties were true, correct and
complete in all material respects as of such earlier date; provided that
each reference to the Credit Agreement therein shall be deemed to be a
reference to the Credit Agreement after giving effect to this Amendment.


 


(b)                                 After
giving effect to this Amendment, no Potential Event of Default or Event of
Default shall have occurred and be continuing.


 


SECTION 5.  Effect on the
Loan Documents.


 


(a)                                  Except
as specifically amended above, the Credit Agreement and all other Loan
Documents shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed.


 


(b)                                 The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any Lender or the Administrative Agent
under any of the Loan Documents, nor constitute a waiver of any provision of
any of the Loan Documents.


 


(c)                                  This
Amendment is a Loan Document executed pursuant to the Credit Agreement and
shall be construed, administered and applied in accordance with all of the
terms and provisions of the Credit Agreement.


 


SECTION 6.                                Expenses.  The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transaction contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.


 


SECTION 7.                                No Waiver,
Cumulative Remedies.  No failure or
delay or course of dealing on the part of the Lenders or the Administrative
Agent in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.  The rights, powers and remedies herein expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Lenders or the Administrative Agent would otherwise have.  No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Lenders to any other or further action in any circumstances without notice or
demand.


 


SECTION 8.                                Severability.  In case any provision in or obligation under
this Amendment shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.


 


2





















 


SECTION 9.                                Applicable Law.  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 10.                          Execution
in Counterparts; Effectiveness of Facsimile.  This Amendment may be executed by one or more
of the parties to this Amendment on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.  Delivery to the
Administrative Agent of an executed counterpart hereof (or a signature page hereto)
by facsimile shall be effective as delivery of an original executed counterpart
hereof.


 


[Signature Pages Follow]


 


3





















 


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


 


	
   

  	
   

  	
  HOSPIRA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Lori. O. Carlson

  	
   

  
	
   

  	
   

  	
  Name: Lori O. Carlson

  
	
   

  	
   

  	
  Title: Corporate Vice President and
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  275 N. Field Drive

  
	
   

  	
   

  	
  Lake Forest, Il 60045

  
	
   

  	
   

  	
  Attention: Lori O. Carlson

  
	
   

  	
   

  	
  Tel: (224) 212-2668

  
	
   

  	
   

  	
  Fax: (224) 212-3284

  
	
   

  	
   

  	
  email: lori.carlson@hospira.com

  



 


S-1





















 


	
   

  	
   

  	
  CITICORP NORTH AMERICA, INC.,

  
	
   

  	
   

  	
  as Lender and Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Wajeeh Faheem

  	
   

  
	
   

  	
   

  	
  Name: Wajeeh Faheem

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  390 Greenwich Street

  
	
   

  	
   

  	
  New York, NY 10013

  
	
   

  	
   

  	
  Attention: William E. Clark

  
	
   

  	
   

  	
  Tel: (212) 816-8183

  
	
   

  	
   

  	
  Fax: (212) 816-8051

  
	
   

  	
   

  	
  email: william.e.clark@citigroup.com

  



 


S-2





















 


	
   

  	
   

  	
  CITIGROUP GLOBAL MARKETS INC.,

  
	
   

  	
   

  	
  as Joint Lead Bookrunner and Joint Lead
  Arranger

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Wajeeh Faheem

  	
   

  
	
   

  	
   

  	
  Name: Wajeeh Faheem

  
	
   

  	
   

  	
  Title: Attorney in Fact

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  390 Greenwich Street

  
	
   

  	
   

  	
  New York, NY 10013

  
	
   

  	
   

  	
  Attention: William E. Clark

  
	
   

  	
   

  	
  Tel: (212) 816-8183

  
	
   

  	
   

  	
  Fax: (212) 816-8051

  
	
   

  	
   

  	
  email: william.e.clark@citigroup.com

  



 


S-3





















 


	
   

  	
   

  	
  ABN AMRO INCORPORATED,

  
	
   

  	
   

  	
  as Joint Lead Bookrunner and Joint Lead
  Arranger

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Linda Boardman

  	
   

  
	
   

  	
   

  	
  Name: Linda Boardman

  
	
   

  	
   

  	
  Title: Vice President and Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c/o ABN AMRO Bank N.V.

  
	
   

  	
   

  	
  208 South LaSalle Street, Suite 1500

  
	
   

  	
   

  	
  Chicago, IL 60604-1003

  
	
   

  	
   

  	
  Attention: Loan Administration

  
	
   

  	
   

  	
  Tel: (312) 992-5250

  
	
   

  	
   

  	
  Fax: (312) 992-5155

  
	
   

  	
   

  	
  email:

  



 


S-4





















 


	
   

  	
   

  	
  ABN AMRO BANK N.V.,
  as Lender and Joint

  Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Eric Oppenheimer

  	
   

  
	
   

  	
   

  	
  Name: Eric Oppenheimer

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kevin LeGallo

  	
   

  
	
   

  	
   

  	
  Name: Kevin LeGallo

  
	
   

  	
   

  	
  Title: Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  208 South LaSalle Street, Suite 1500

  
	
   

  	
   

  	
  Chicago, IL 60604-1003

  
	
   

  	
   

  	
  Attention: Loan Administration

  
	
   

  	
   

  	
  Tel: (312) 992-5250

  
	
   

  	
   

  	
  Fax: (312) 992-5155

  
	
   

  	
   

  	
  email:

  
						



 


S-5





















 


	
   

  	
   

  	
  MORGAN STANLEY SENIOR FUNDING,

  INC., as Joint Lead Bookrunner, Joint Lead

  Arranger and Joint Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jaap L. Tonckens

  	
   

  
	
   

  	
   

  	
  Name: Jaap L. Tonckens

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1633 Broadway, 25th Floor

  
	
   

  	
   

  	
  New York, NY 10019

  
	
   

  	
   

  	
  Attention: James Morgan/Larry Benison

  
	
   

  	
   

  	
  Tel: (212) 537-1470 / (212) 537-1439

  
	
   

  	
   

  	
  Fax: (212) 537-1867 / 1866

  
	
   

  	
   

  	
  email:

  



 


S-6





















 


	
   

  	
   

  	
  MORGAN STANLEY BANK,
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jaap L. Tonckens

  	
   

  
	
   

  	
   

  	
  Name: Jaap L. Tonckens

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1633 Broadway, 25th Floor

  
	
   

  	
   

  	
  New York, NY 10019

  
	
   

  	
   

  	
  Attention: James Morgan/Larry Benison

  
	
   

  	
   

  	
  Tel: (212) 537-1470 / (212) 537-1439

  
	
   

  	
   

  	
  Fax: (212) 537-1867 / 1866

  
	
   

  	
   

  	
  email:

  



 


S-7





















 


	
   

  	
   

  	
  JPMORGAN CHASE BANK, N.A.,
  as Lender

  and Co-Documentation Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Diane Faunda

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1 Bank One Plaza, Mail Code IL 1-0010

  	
   

  
	
   

  	
   

  	
  Chicago, IL 60670

  	
   

  
	
   

  	
   

  	
  Attention: William Laird

  	
   

  
	
   

  	
   

  	
  Tel: (312) 385-7045

  	
   

  
	
   

  	
   

  	
  Fax: (312) 385-7098

  	
   

  
	
   

  	
   

  	
  email: william_laird@bankone.com

  	
   

  
						



 


S-8





















 


	
   

  	
   

  	
  BANK OF AMERICA, N.A.,
  as Lender and Co-

  Documentation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ B. Kenneth Burton, Jr.

  	
   

  
	
   

  	
   

  	
  Name: B. Kenneth Burton, Jr.

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1850 Gateway Blvd.

  
	
   

  	
   

  	
  Concord, CA 94520-3282

  
	
   

  	
   

  	
  Attention: Pamela S. Greer-Tillman

  
	
   

  	
   

  	
  Tel: (925) 675-8453

  
	
   

  	
   

  	
  Fax: (888) 969-2786

  
	
   

  	
   

  	
  email:

  



 


S-9





















 


	
   

  	
   

  	
  BANK OF MONTREAL,
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Joseph W. Linder

  	
   

  
	
   

  	
   

  	
  Name: Joseph W. Linder

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  115 South LaSalle Street, 12 West

  
	
   

  	
   

  	
  Chicago, IL 60603

  
	
   

  	
   

  	
  Attention: Joseph W. Linder

  
	
   

  	
   

  	
  Tel: (312) 750-3784

  
	
   

  	
   

  	
  Fax: (312) 750-6057

  
	
   

  	
   

  	
  email: joseph.linder@bmo.com

  



 


S-10





















 


	
   

  	
   

  	
  BANK OF MONTREAL IRELAND PLC, as

  Lender with respect to LIBOR Rate Loans in Euros

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Eric Lindstrom

  	
   

  
	
   

  	
   

  	
  Name: Eric Lindstrom

  
	
   

  	
   

  	
  Title: General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4th Floor Segrave House

  
	
   

  	
   

  	
  19/20 Earlsfort Terrace

  
	
   

  	
   

  	
  Dublin 2, IRELAND

  
	
   

  	
   

  	
  Attention: Eric Lindstrom

  
	
   

  	
   

  	
  Tel: 353-1-662-9300

  
	
   

  	
   

  	
  Fax: 353-1-662-9301

  
	
   

  	
   

  	
  email: eric.lindstrom@bmo.com

  



 


S-11





















 


	
   

  	
   

  	
  THE BANK OF TOKYO-MITSUBISHI, LTD.,

  CHICAGO BRANCH, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kazuya Matsushita

  	
   

  
	
   

  	
   

  	
  Name: Kazuya Matsushita

  
	
   

  	
   

  	
  Title: General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Bank of Tokyo-Mitsubishi, Ltd.

  
	
   

  	
   

  	
  Chicago Branch

  
	
   

  	
   

  	
  227 W. Monroe St., Suite 2300

  
	
   

  	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  	
  Attention: Corporate Banking—Ms. Diane
  Tkach

  
	
   

  	
   

  	
  Tel: (312) 696-4663

  
	
   

  	
   

  	
  Fax: (312) 696-4535

  
	
   

  	
   

  	
  email: dtkach@btmna.com

  



 


S-11





















 


	
   

  	
   

  	
  BNP PARIBAS, as
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Wendy Breuder

  	
   

  
	
   

  	
   

  	
  Name: Wendy Breuder

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Christopher S. Grumboski

  	
   

  
	
   

  	
   

  	
  Name: Christopher S. Grumboski

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  919 Third Avenue

  
	
   

  	
   

  	
  3rd Floor

  
	
   

  	
   

  	
  New York, NY 10022

  
	
   

  	
   

  	
  Attention: Gabriel Candamo

  
	
   

  	
   

  	
  Tel: (212) 471-6626

  
	
   

  	
   

  	
  Fax: (212) 471-6695

  
	
   

  	
   

  	
  email:

  
							



 


S-12





















 


	
   

  	
   

  	
  COMMERZBANK AG, NEW YORK AND

  GRAND CAYMAN BRANCHES, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Graham A. Warning

  	
   

  
	
   

  	
   

  	
  Name: Graham A. Warning

  
	
   

  	
   

  	
  Title: Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John Marlatt

  	
   

  
	
   

  	
   

  	
  Name: John Marlatt

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  20 South Clark Street

  
	
   

  	
   

  	
  Suite 2700

  
	
   

  	
   

  	
  Chicago, Il 60603

  
	
   

  	
   

  	
  Attention: John Marlatt

  
	
   

  	
   

  	
  Tel: (312) 795-1625

  
	
   

  	
   

  	
  Fax: (312) 236-2827

  
	
   

  	
   

  	
  email: jmarlatt@cbkna.com

  
							



 


S-13





















 


	
   

  	
   

  	
  SUNTRUST BANK, as
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ W. Brooks Hubbard

  	
   

  
	
   

  	
   

  	
  Name: W. Brooks Hubbard

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  200 South Orange Avenue, MC 1108

  
	
   

  	
   

  	
  Orlando, FL 32801

  
	
   

  	
   

  	
  Attention: Arnette Delaine

  
	
   

  	
   

  	
  Tel: (407) 237-2436

  
	
   

  	
   

  	
  Fax: (407) 237-5342

  
	
   

  	
   

  	
  email:

  



 


S-14





















 


	
   

  	
   

  	
  WACHOVIA BANK, N.A.,
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ James Travagline

  	
   

  
	
   

  	
   

  	
  Name: James Travagline

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  201 South College Street CP9, NC 1183

  
	
   

  	
   

  	
  Charlotte, NC 28288

  
	
   

  	
   

  	
  Attention: Dianne Taylor

  
	
   

  	
   

  	
  Tel: (704) 715-1876

  
	
   

  	
   

  	
  Fax: (704) 715-0094

  
	
   

  	
   

  	
  email:

  



 


S-15





















 


	
   

  	
   

  	
  THE NORTHERN TRUST COMPANY,
  as

  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David C. Fisher

  	
   

  
	
   

  	
   

  	
  Name: David C. Fisher

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  50 South LaSalle Street

  
	
   

  	
   

  	
  Chicago, IL 60675

  
	
   

  	
   

  	
  Attention: Linda Honda

  
	
   

  	
   

  	
  Tel: (312) 444-3532

  
	
   

  	
   

  	
  Fax: (312) 630-1566

  
	
   

  	
   

  	
  email:

  



 


S-16





















 


EXHIBIT A


 


 


A-1





















 


EXHIBIT A


 


 


$375,000,000


CREDIT
AGREEMENT AND GUARANTY


 


dated as
of April 30, 2004,


 


as amended
as of April 29, 2005


 


among


 


HOSPIRA,
INC.,


as the
Borrower and the Guarantor,


 


THE
SUBSIDIARY BORROWERS


FROM TIME
TO TIME PARTY HERETO,


 


THE BANKS
AND FINANCIAL INSTITUTIONS LISTED HEREIN,


as
Lenders,


 


CITIGROUP
GLOBAL MARKETS INC.,


ABN
AMRO INCORPORATED,


 


and


 


MORGAN
STANLEY SENIOR FUNDING, INC.,


as
Joint Lead Bookunners and Joint Lead Arrangers,


 


ABN
AMRO BANK N.V.,


and


MORGAN
STANLEY SENIOR FUNDING, INC.,


as
Joint Syndication Agents,


 


BANK
ONE, NA


and


BANK
OF AMERICA, N.A.,


as
Co-Documentation Agents


 


and


 


CITICORP
NORTH AMERICA, INC.,


as
Administrative Agent


 










 













 


CREDIT AGREEMENT


 


TABLE OF CONTENTS


 


	
  SECTION 1. DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Certain Defined Terms

  	
   

  
	
  1.2

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

  	
   

  
	
  1.3

  	
  Other Definitional Provisions and
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.
  AMOUNT AND TERMS OF COMMITMENTS AND LOANS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Commitment; Making of Revolving Loan;
  Letters of Credit

  	
   

  
	
  2.2

  	
  Issuance of Letters of Credit and Purchase
  of Participations Therein

  	
   

  
	
  2.3

  	
  Pro Rata Shares; Availability of Funds; UCP

  	
   

  
	
  2.4

  	
  The Register; Evidence of Debt; Revolving
  Loan Notes

  	
   

  
	
  2.5

  	
  Interest on the Revolving Loans

  	
   

  
	
  2.6

  	
  Fees

  	
   

  
	
  2.7

  	
  Provisions Regarding Payments

  	
   

  
	
  2.8

  	
  Increased Costs; Taxes

  	
   

  
	
  2.9

  	
  Special Provisions Governing LIBOR Rate
  Loans

  	
   

  
	
  2.10

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

  	
   

  
	
  2.11

  	
  Defaulting Lenders

  	
   

  
	
  2.12

  	
  Removal or Replacement of a Lender

  	
   

  
	
  2.13

  	
  Mitigation

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Conditions to Effectiveness

  	
   

  
	
  3.2

  	
  Conditions Precedent to each Credit
  Extension

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.
  REPRESENTATIONS AND WARRANTIES  

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

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

  	
   

  
	
  4.2

  	
  Authorization of Borrowing, etc

  	
   

  
	
  4.3

  	
  Valid Issuance of Securities

  	
   

  
	
  4.4

  	
  Financial Condition

  	
   

  
	
  4.5

  	
  No Material Adverse Change; No Restricted
  Payments

  	
   

  
	
  4.6

  	
  Indebtedness

  	
   

  
	
  4.7

  	
  Title to Properties; Liens

  	
   

  
	
  4.8

  	
  Intellectual Property Matters

  	
   

  
	
  4.9

  	
  No Litigation; Compliance with Laws

  	
   

  
	
  4.10

  	
  Payment of Taxes

  	
   

  
	
  4.11

  	
  Employee Matters

  	
   

  
	
  4.12

  	
  No Default

  	
   

  
						



 


i





















 


	
  4.13

  	
  Governmental Regulation

  	
   

  
	
  4.14

  	
  Securities Activities

  	
   

  
	
  4.15

  	
  Employee Benefit Plans

  	
   

  
	
  4.16

  	
  Certain Fees

  	
   

  
	
  4.17

  	
  Environmental Protection

  	
   

  
	
  4.18

  	
  Solvency

  	
   

  
	
  4.19

  	
  Pari Passu

  	
   

  
	
  4.20

  	
  Restrictions

  	
   

  
	
  4.21

  	
  Related Agreements

  	
   

  
	
  4.22

  	
  Disclosure

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Financial Statements and Other Reports

  	
   

  
	
  5.2

  	
  Books and Records; Lenders Meetings

  	
   

  
	
  5.3

  	
  Existence

  	
   

  
	
  5.4

  	
  Insurance

  	
   

  
	
  5.5

  	
  Payment of Taxes and Claims

  	
   

  
	
  5.6

  	
  Payment and Performance of Obligations

  	
   

  
	
  5.7

  	
  Maintenance of Properties

  	
   

  
	
  5.8

  	
  Compliance with Laws

  	
   

  
	
  5.9

  	
  Use of Proceeds

  	
   

  
	
  5.10

  	
  Ownership
  of Subsidiary Borrowers

  	
   

  
	
  5.11

  	
  Claims Pari
  Passu

  	
   

  
	
  5.12

  	
  Further
  Assurances

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Liens

  	
   

  
	
  6.2

  	
  Indebtedness

  	
   

  
	
  6.3

  	
  Acquisitions

  	
   

  
	
  6.4

  	
  Restrictions on Subsidiary Distributions

  	
   

  
	
  6.5

  	
  Restricted Payments

  	
   

  
	
  6.6

  	
  Restriction on Fundamental Changes; Sales
  of Assets

  	
   

  
	
  6.7

  	
  [Reserved.]

  	
   

  
	
  6.8

  	
  Conduct of Business

  	
   

  
	
  6.9

  	
  Accounting Changes; Fiscal Year

  	
   

  
	
  6.10

  	
  Other Indebtedness

  	
   

  
	
  6.11

  	
  Transactions with Shareholders and
  Affiliates

  	
   

  
	
  6.12

  	
  [Reserved.]

  	
   

  
	
  6.13

  	
  [Reserved.]

  	
   

  
	
  6.14

  	
  Financial Covenants

  	
   

  
	
  6.15

  	
  Interest Rate Agreements and Currency
  Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7. GUARANTY

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Guaranty of the Obligations

  	
   

  
	
  7.2

  	
  Payment by the Borrower

  	
   

  
	
  7.3

  	
  Liability of Guarantor Absolute

  	
   

  
	
  7.4

  	
  Waivers by Guarantor

  	
   

  
					



 


ii





















 


	
  7.5

  	
  Guarantor’s Rights of Subrogation,
  Contribution, etc

  	
   

  
	
  7.6

  	
  Subordination of Other Obligations

  	
   

  
	
  7.7

  	
  Continuing Guaranty

  	
   

  
	
  7.8

  	
  Authority of Credit Parties

  	
   

  
	
  7.9

  	
  Financial Condition of Credit Parties

  	
   

  
	
  7.10

  	
  Bankruptcy,
  etc

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8. EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Failure to Make Payments When Due

  	
   

  
	
  8.2

  	
  Default in Other Agreements

  	
   

  
	
  8.3

  	
  Breach of Certain Covenants

  	
   

  
	
  8.4

  	
  Breach of Representation or Warranty

  	
   

  
	
  8.5

  	
  Other Defaults Under Loan Documents

  	
   

  
	
  8.6

  	
  Involuntary Bankruptcy; Appointment of
  Receiver, etc

  	
   

  
	
  8.7

  	
  Voluntary Bankruptcy; Appointment of
  Receiver, etc

  	
   

  
	
  8.8

  	
  Judgments and Attachments

  	
   

  
	
  8.9

  	
  Dissolution

  	
   

  
	
  8.10

  	
  Employee Benefit Plans

  	
   

  
	
  8.11

  	
  Change
  in Control

  	
   

  
	
  8.12

  	
  Repudiation of Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9. MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Assignments and Participations in Loans and
  Letters of Credit

  	
   

  
	
  9.2

  	
  Expenses

  	
   

  
	
  9.3

  	
  Indemnity

  	
   

  
	
  9.4

  	
  Exception for Subsidiary Borrowers

  	
   

  
	
  9.5

  	
  Set-Off

  	
   

  
	
  9.6

  	
  Amendments and Waivers

  	
   

  
	
  9.7

  	
  Independence of Covenants

  	
   

  
	
  9.8

  	
  Notices

  	
   

  
	
  9.9

  	
  Survival of Representations, Warranties and
  Agreements

  	
   

  
	
  9.10

  	
  Failure or Indulgence Not Waiver; Remedies
  Cumulative

  	
   

  
	
  9.11

  	
  Marshalling; Payments Set Aside

  	
   

  
	
  9.12

  	
  Severability

  	
   

  
	
  9.13

  	
  Headings

  	
   

  
	
  9.14

  	
  Applicable
  Law

  	
   

  
	
  9.15

  	
  Successors and Assigns

  	
   

  
	
  9.16

  	
  Consent to Jurisdiction and Service of Process

  	
   

  
	
  9.17

  	
  Waiver of Jury Trial

  	
   

  
	
  9.18

  	
  Confidentiality

  	
   

  
	
  9.19

  	
  Ratable
  Sharing

  	
   

  
	
  9.20

  	
  Counterparts; Effectiveness

  	
   

  
	
  9.21

  	
  Obligations Several; Independent Nature of
  Lenders’ Rights

  	
   

  
	
  9.22

  	
  Usury Savings Clause

  	
   

  
	
  9.23

  	
  Judgment Currency

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10. AGENTS

  	
   

  



 


iii





















 


	
  10.1

  	
  Appointment

  	
   

  
	
  10.2

  	
  Powers and Duties; General Immunity

  	
   

  
	
  10.3

  	
  Representations and Warranties; No
  Responsibility For Appraisal of Creditworthiness

  	
   

  
	
  10.4

  	
  Right
  to Indemnity

  	
   

  
	
  10.5

  	
  Successor Administrative Agent

  	
   

  
	
  10.6

  	
  Agents Under Guaranty

  	
   

  
	
  10.7

  	
  Acknowledgment of Potential Related
  Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11. JOINDER OF SUBSIDIARY
  BORROWERS

  	
   

  



 


iv





















 


EXHIBITS


 


 


	
  I

  	
  FORM OF NOTICE OF BORROWING

  	
   

  
	
  II

  	
  FORM OF CONVERSION/CONTINUATION NOTICE

  	
   

  
	
  III

  	
  FORM OF REVOLVING LOAN NOTE

  	
   

  
	
  IV

  	
  FORM OF CERTIFICATE RE NON-BANK STATUS

  	
   

  
	
  V

  	
  FORM OF FINANCIAL CONDITION CERTIFICATE

  	
   

  
	
  VI

  	
  FORM OF ASSIGNMENT AGREEMENT

  	
   

  
	
  VII

  	
  FORM OF ISSUANCE NOTICE

  	
   

  
	
  VIII

  	
  FORM OF SECRETARY’S CERTIFICATE

  	
   

  
	
  IX

  	
  FORM OF OFFICER’S CERTIFICATE

  	
   

  
	
  X

  	
  FORM OF JOINDER AGREEMENT

  	
   

  



 


v





















 


SCHEDULES


 


 


	
  2.1A

  	
  LENDERS’ COMMITMENTS AND PRO RATA SHARES

  	
   

  
	
  4.1C

  	
  SUBSIDIARIES

  	
   

  
	
  4.6

  	
  INDEBTEDNESS

  	
   

  
	
  6.1

  	
  LIENS

  	
   

  
	
  6.3

  	
  INVESTMENTS

  	
   

  
	
  6.6

  	
  POTENTIAL REAL ESTATE SALES

  	
   

  
	
  6.12

  	
  TRANSACTIONS WITH AFFILIATES

  	
   

  



 


vi





















 


US$375 Million Revolving Credit Facility


 


CREDIT AGREEMENT AND GUARANTY


 


This CREDIT AGREEMENT AND GUARANTY is dated as of April 30,
2004 and entered into by and among Hospira, Inc., a Delaware corporation
(the “Borrower”), the Subsidiary
Borrowers from time to time party hereto, the banks and financial institutions
listed on the signature pages hereof (each individually referred to herein
as a “Lender” and collectively as “Lenders”), Citigroup Global Markets, Inc.
(“CGMI”), ABN AMRO Incorporated (“ABN AMRO”) and Morgan Stanley Senior
Funding, Inc. (“MSSF”) as
joint lead bookrunners and joint lead arrangers (in such capacity, the “Lead Arrangers”), ABN AMRO Bank N.V. (“ABN AMRO Bank”) and MSSF as joint
syndication agents (in such capacity, the “Syndication
Agents”), Bank One, NA and Bank of America, N.A. as co-documentation
agents (in such capacity, the “Documentation Agents”)
and Citicorp North America, Inc. as administrative agent for the Lenders (“Citicorp” and in such capacity, the “Administrative Agent”).


 


PRELIMINARY STATEMENTS


 


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


 


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


 


SECTION 1.                            DEFINITIONS


 


1.1          Certain Defined Terms.


 


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


 


“Abbott” means
Abbott Laboratories, an Illinois corporation.


 


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


 


“ABN AMRO Bank”
shall have the meaning ascribed to such term in the introduction to this
Agreement.


 


“Acquisition” shall have
the meaning ascribed to such term in Section 6.3.


 


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


 


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


 





















 


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


 


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


 


“Agency Fee Letter”
means the Agency Fee Letter, dated April 6, 2004, among the Borrower, Citicorp and CGMI, as
the same may be amended, supplemented or otherwise modified from time to time.


 


“Agents” means the
Administrative Agent, the Syndication Agents and the Documentation Agents,
collectively, and also means and includes any successor Administrative Agent
appointed pursuant to Section 10.5.


 


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


 


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


 


“Alternative Currency”
means Euros or Canadian dollars.


 


“Alternative Currency Loan”
means a Revolving Loan that is a LIBOR Rate Loan made in an Alternative
Currency pursuant to the applicable Notice of Borrowing.


 


“Alternative Currency Sublimit”
means a Dollar Amount not in excess of $100,000,000; provided, that no
individual Subsidiary Borrower shall be permitted to borrow Alternative
Currency Loans, the Dollar Amount of which is in excess of $50,000,000 in the
aggregate.


 


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


 


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


 


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


 


2





















 


	
  Performance Level

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  	
  Level V

  	
   

  
	
  Base Rate Applicable Margin

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0.25

  	
  %

  
	
  LIBOR Applicable Margin

  	
   

  	
  0.375

  	
  %

  	
  0.475

  	
  %

  	
  0.575

  	
  %

  	
  0.900

  	
  %

  	
  1.25

  	
  %

  
	
  Facility Fee

  	
   

  	
  0.125

  	
  %

  	
  0.15

  	
  %

  	
  0.175

  	
  %

  	
  0.225

  	
  %

  	
  0.375

  	
  %

  



 


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


 


	
  Performance Level

  	
   

  	
  Public Debt Rating

  	
   

  
	
  Level I

  	
   

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

  	
   

  
	
  Level II

  	
   

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

  	
   

  
	
  Level III

  	
   

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

  	
   

  
	
  Level IV

  	
   

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

  	
   

  
	
  Level V

  	
   

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

  	
   

  



 


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


 


3





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4





















 


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


 


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


 


“Bridge Facility” means
the Credit Agreement, dated as of April 28, 2004, by and among Abbott, the
Borrower, MSSF, ABN AMRO Bank and Citicorp as lenders, MSSF, ABN AMRO, and
Citicorp as joint lead bookrunners and joint lead arrangers, ABN AMRO and
Citicorp as joint syndication agents, and MSSF as administrative agent.


 


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


 


“Canadian Dollars” means the lawful money of Canada.


 


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


 


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


 


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


 


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


 


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


 


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


 


5





















 


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


 


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


 


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


 


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


 


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


 


“Change of Control”
means (i) any Person or “group” (within the meaning of Rules 13d-3
and 13d-5 under the Exchange Act) shall have acquired beneficial
ownership of 30% or more on a fully diluted basis of the voting and/or economic
interest in the Capital Stock of the Borrower; (ii) any Person or “group”
(within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act) shall have obtained the power (whether or not exercised) to elect
a majority of the members of the board of directors (or similar governing body)
of the Borrower; (iii) during


 


6





















 


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


 


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


 


“Compliance
Certificate”
means a certificate of the chief financial officer, treasurer or controller of
the Borrower setting forth computations in reasonable detail demonstrating (i) compliance
with the covenants set forth in Section 6.14, as at the end of the period
covered by such financial statements, and (ii) certifying that such
officer has obtained no knowledge of any Potential Event of Default or Event of
Default except as specified in such certificate.


 


“Consolidated Adjusted EBIT”
means, in respect of the Borrower and
its Subsidiaries on a consolidated basis, for any period, an amount equal to (i) the
sum, without duplication, of the amounts for such period of (a) Consolidated
Net Income, (b) Consolidated Financing Expense, (c) provisions for
taxes based on income and (d) other non-Cash items reducing Consolidated
Net Income (excluding any such non-Cash item to the extent that it represents
an accrual or reserve for potential Cash items in any future period or
amortization of a prepaid Cash item that was paid in a prior period), minus
(ii) other non-Cash items increasing Consolidated Net Income for such
period (excluding any such non-Cash item to the extent it represents the
reversal of an accrual or reserve for potential Cash item in any prior period).


 


“Consolidated Adjusted EBITDA”
means, in respect of the Borrower and its Subsidiaries on a consolidated basis,
for any period, an amount equal to (i) the sum, without duplication, of
the amounts for such period of (a) Consolidated Net Income, (b) Consolidated
Financing Expense, (c) provisions for taxes based on income, (d) total
depreciation expense, (e) total amortization expense, and (f) other
non-Cash items reducing Consolidated Net Income (excluding any such non-Cash
item to the extent that it represents an accrual or reserve for potential Cash
items in any future period or amortization of a prepaid Cash item that was paid
in a prior period), minus (ii) other non-Cash items increasing
Consolidated Net Income for such period (excluding any such non-Cash item to
the extent it represents the reversal of an accrual or reserve for potential
Cash item in any prior period).


 


“Consolidated Financing Expense”
means, in respect of the Borrower and
its Subsidiaries on a consolidated basis, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) with respect to all outstanding
Indebtedness of the Borrower and
its Subsidiaries, including all commissions,


 


7





















 


discounts and other fees
and charges owed with respect to any letters of credit and bankers’ acceptance
financing and net costs under Interest Rate Agreements.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8





















 


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


 


“Currency” means
any of Canadian Dollars, Dollars or Euros.


 


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


 


“Debt Issuance” means the
issuance by the Borrower or any
of its Subsidiaries of debt Securities.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Distribution”
means the separation of Abbott’s core hospital products business, the transfer
of such business to the Borrower and certain of its Subsidiaries and the
distribution of all of the Capital Stock of the Borrower to Abbott shareholders
on a pro rata basis, all on


 


9





















 


terms and conditions
consistent with the Separation and Distribution Agreement and the Form 10.


 


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


 


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


 


“Dollar Amount”
means, at any time:


 


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


 


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


 


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


 


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


 


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


 


“Eligible Assignee” means (A) any
Lender and any Affiliate of any Lender; and (B) any commercial bank,
savings and loan association, savings bank, insurance company, investment or
mutual fund or other entity that is an “accredited investor” (as defined in
Regulation D under the Securities Act) and which extends credit or buys loans
as one of its businesses; provided that no Affiliate of the Borrower or any of its
Subsidiaries shall be an Eligible Assignee.


 


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


 


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


 


“Environmental Laws” means any
and all current or future federal, state, local and foreign laws and
regulations, statutes, ordinances, orders, rules, guidance documents,
judgments, Governmental Authorizations, or any other requirements of
Governmental


 


10





















 


Authorities relating to (i) environmental
matters, including those relating to any Hazardous Materials Activity, (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials, or
(iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare.


 


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


 


“ERISA Affiliate” means, as
applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of
the Internal Revenue Code of which that Person is a member; (ii) any trade
or business (whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of Section 414(c) of
the Internal Revenue Code of which that Person is a member; and (iii) any
member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause
(ii) above is a member.  Any former
ERISA Affiliate of the Borrower shall continue to be considered an ERISA
Affiliate of the Borrower within the meaning of this definition with respect to
the period such entity was an ERISA Affiliate of the Borrower and with respect
to liabilities arising after such period relating to the period that such
entity was an ERISA Affiliate.


 


“ERISA Event” means (i) a “reportable
event” within the meaning of Section 4043 of ERISA and the regulations
issued thereunder with respect to any Pension Plan (excluding those for which
the provision for 30-day notice to the PBGC has been waived by regulation
and further excluding those that are directly attributable to the Distribution
or the transfer of assets from any Pension Plan of Abbott to any Pension Plan
of the Borrower in accordance with the Employee Benefits Agreement between
Abbott and the Borrower dated April 16, 2004); (ii) the failure to
meet the minimum funding standard of Section 412 of the Internal Revenue
Code with respect to any Pension Plan (whether or not waived in accordance with
Section 412(d) of the Internal Revenue Code) or the failure to make
by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any
required contribution to a Multiemployer Plan; (iii) the provision by the
administrator of any Pension Plan pursuant to Section 4041(a)(2) of
ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by the Borrower or any of its


 


11





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Fee Letter” means
the Fee Letter, dated April 6, 2004, among the Borrower, Citicorp, CGMI, ABN AMRO, ABN AMRO Bank and MSSF,
as the same may be amended, supplemented or otherwise modified from time to
time.


 


12





















 


“Financial Condition Certificate”
means an officer’s certificate in the form of Exhibit V hereto.


 


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


 


“Fiscal Year” means the fiscal
year of the Borrower and its
Subsidiaries ending on December 31, of each calendar year.  For purposes of this Agreement, any
particular Fiscal Year shall be designated by reference to the calendar year in
which such Fiscal Year ends.


 


“Form 10” means
the Form 10/A (as amended from time to time) filed by the Borrower with
the Securities and Exchange Commission which became effective on April 13,
2004.


 


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


 


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


 


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


 


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


 


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


 


“Governmental Authority”
means any federal, state, municipal, national or other government, governmental
department, commission, board, bureau, court, agency or instrumentality or
political subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to any government or any court, in each case whether associated with a state of
the United States, the United States, or a foreign entity or government.


 


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


 


13





















 


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


 


“Guarantor” means the Borrower.


 


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


 


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


 


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


 


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


 


“Indebtedness”, as applied to
any Person, means (i) all indebtedness for borrowed money, (ii) that
portion of obligations with respect to Capital Leases that is classified as a
liability on a balance sheet in conformity with GAAP, (iii) notes payable
and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money, (iv) any obligation owed for
all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price is (a) due
more than six months from the date of incurrence of the obligation in respect
thereof or (b) evidenced by a note or similar written instrument, (v) all
indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person, (vi) the
face amount of any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings; (vii) the
direct or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another; (viii) any
obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the
holders thereof will be protected (in whole or in part) against loss in respect
thereof; and (ix) any liability of such Person for an obligation of
another through any agreement (contingent or otherwise) (a) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise)
or (b) to maintain the solvency or any balance sheet item, level of income
or financial condition of another if, in the case of any agreement


 


14





















 


described under
subclauses (a) or (b) of this clause (ix), the primary purpose or
intent thereof is as described in clause (viii) above.  For the avoidance of any doubt, it is hereby
understood and agreed that any Indebtedness owing by Hospira to Abbott or its Affiliates upon the
consummation of the Distribution pursuant to the Transition Marketing and
Distribution Services Agreements, in respect of assets outside of the United
States transferred from Abbott or its Affiliates to Hospira or its Subsidiaries
constitutes Indebtedness as defined herein.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Investment” means (i) any
direct or indirect purchase or other acquisition by the Borrower or any of its
Subsidiaries of, or of a beneficial interest in, any Securities of any other
Person, (ii) any direct or indirect redemption, retirement, purchase or
other acquisition for value, by the
Borrower or any of its Subsidiaries from any Person of any Capital Stock
of such Person, (iii) any direct or indirect loan, advance (other than
advances to employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business) or
capital contribution by the Borrower or
any of its Subsidiaries to any other Person, including all Indebtedness and
accounts receivable from that other Person that are not current assets or did
not arise from sales to that other Person in the ordinary course of business,
and (iv) any other asset classified as an “investment” in accordance with
GAAP.  The amount of any Investment shall
be the original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment.


 


15





















 


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


 


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


 


“Issuing Bank”
means the Administrative Agent or any Lender approved as an Issuing Bank by the
Administrative Agent, together with its permitted successors and assigns in
such capacity.


 


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


 


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


 


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


 


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


 


“Lender” and “Lenders” have the meanings assigned to that term in the
introduction to this Agreement.


 


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


 


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


 


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


 


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


 


“LIBOR” means, for any Interest
Rate Determination Date, the offered rate in the London interbank market for
deposits in Dollars or the relevant Alternative Currency of amounts equal or
comparable to the Revolving Loans offered for a term comparable to such
Interest Period that appears on Telerate Page 3750 as of approximately
11:00 A.M., London time


 


16





















 


(or such other page as
may replace such page on such service for the purpose of displaying the
rates at which such Dollar or Alternative Currency deposits are offered by
leading banks in the London interbank deposit market), or if no quotation
appears on Telerate Page 3750, the average rate per annum which the
offices of four leading banks selected by the Administrative Agent and located
in London offer for deposits in Dollars or the relevant Alternative Currency in the London interbank deposit market at
approximately 11:00 a.m. (London time).


 


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


 


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


 


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


 


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


 


“Material Adverse Effect” means
a material adverse effect upon (i) the business, operations, properties or
condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, (ii) the ability
of the Borrower to perform, or
of the Administrative Agent to enforce, any of the Obligations of the Borrower (including the Obligations under
Section 7 hereof) or (iii) the legality, validity, binding effect
or enforceability against the Borrower
(or any Subsidiary Borrower that has outstanding or has requested Alternative
Currency Loans) of a Loan Document to which it is a party.


 


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


 


“Moody’s” means
Moody’s Investor Services, Inc.


 


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


 


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


 


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


 


17





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Projections” means the
projections of the Borrower and its Subsidiaries on a consolidated basis for
the period from 2004 through and including 2008 and included in the information
memorandum distributed to the Lenders in connection herewith.


 


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


 


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


 


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


 


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


 


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


 


“Related Agreements”
means each of those agreements, documents and instruments filed as exhibits to
the Form 10.


 


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


 


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


 


“Requisite Lenders” means
Lenders having aggregate Pro Rata Shares of more than 50%.


 


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


 


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


 


“Revolving Commitment”
means the Dollar Amount of the commitment of a Lender to make or otherwise fund
any Revolving Loan and to acquire participations in Letters of Credit hereunder
and “Revolving Commitments” means
such commitments of all Lenders in the aggregate.  The amount of each Lender’s Revolving
Commitment, if any, is set forth on Schedule 2.1A or in the
applicable Assignment Agreement, subject to any adjustment or reduction
pursuant to the terms and conditions hereof. 
The aggregate amount of the Revolving Commitments as of the Effective
Date is $375,000,000.


 


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


 


20





















 


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


 


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


 


“Revolving Loan Note”
means a promissory note of a Credit Party issued pursuant to (i) Section 2.4C
on the Effective Date, (ii) Section 11D on any Joinder Date or (iii) Section 9.1E
in connection with assignments of the Revolving Loans in each case
substantially in the form of Exhibit III, as it may be amended,
supplemented or otherwise modified from time to time.


 


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


 


“Securities” means any stock, share,
partnership interest, membership interest in a limited liability company,
voting trust certificates, certificate of interest or participation in any
profit-sharing agreement or arrangement, option, warrant, bond, debenture,
note, or other evidence of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities”
or any certificates of interest, shares or participations in temporary or
interim certificates for the purchase or acquisition of, or any right to
subscribe to, purchase or acquire, any of the foregoing.


 


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


 


“Separation and Distribution
Agreement” means that certain Separation and Distribution
Agreement, dated as of April 12, 2004, by and between Abbott and the
Borrower.


 


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


 


“Solvent” means, with respect to
any Person, that as of the date of determination both (A) (i) the
then fair saleable value of the property of such Person is (y) greater than the
total amount of liabilities (including contingent liabilities) of such Person
and (z) not less than the amount that will be required to pay the probable
liabilities on such Person’s then existing debts as they become absolute and
matured considering all financing alternatives and potential asset sales
reasonably available to such Person; (ii) such Person’s capital is not
unreasonably small in relation to its business or any contemplated or
undertaken transaction; and (iii) such Person has


 


21





















 


not incurred and does not
intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due (whether
at maturity or otherwise); and (B) such Person is “solvent” within the
meaning given that term and similar terms under Applicable Laws relating to
fraudulent transfers and conveyances. 
For purposes of this definition, the amount of any contingent liability
at any time shall be computed as the amount that, in light of all of the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.


 


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


 


“Subject Transaction” shall have
the meaning ascribed to such term in Section 6.14D.


 


“Subordinated Indebtedness”
means any Indebtedness of the Borrower or
any of its Subsidiaries, subordinated in right and time of payment to the
Obligations.


 


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


 


“Subsidiary Borrower”
means each of the Canadian Subsidiary and the Irish Subsidiary.


 


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


 


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


 


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


 


22





















 


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


 


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


 


“Transition
Marketing and Distribution Services Agreements” means those
certain Transition Marketing and Distribution Services Agreements, dated as of April 16,
2004, by and between the Borrower and Abbott.


 


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


 


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


 


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


 


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


 


1.3                               Other Definitional Provisions and Rules of
Construction.


 


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


 


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


 


23





















 


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


 


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


 


SECTION 2.                            AMOUNT AND TERMS OF COMMITMENTS AND LOANS


 


2.1                               Commitment; Making of Revolving Loan; Letters of
Credit.


 


A.             Revolving Commitments.


 


(i)             During the Revolving Commitment Period, subject to the
terms and conditions of this Agreement and in reliance upon the representations
and warranties of the Credit Parties herein set forth, each Lender severally
agrees to make Revolving Loans (including, with respect to Alternative Currency
Loans, through any Affiliate of such Lender) (i) denominated in Dollars to
the Borrower, (ii) denominated in Canadian Dollars to the Canadian Subsidiary
and (iii) denominated in Euros to the Irish Subsidiary, in an aggregate
amount up to but not exceeding such Lender’s Revolving Commitment as set forth
opposite its name on Schedule 2.1A annexed hereto; provided,
that after giving effect to the making of any Revolving Loans in no event shall
(i) the Total Utilization of Revolving Commitments exceed the Revolving
Commitments then in effect or (ii) the aggregate Dollar Amount of
Alternative Currency Loans exceed the Alternative Currency Sublimit.


 


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


 


B.             Borrowing Mechanics.


 


(i)             Except pursuant to 2.2D, Revolving Loans shall be made
in an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount.


 


(ii)          Whenever any Credit Party desires that the Lenders
make Revolving Loans, such Credit Party shall deliver to Administrative Agent
on behalf of the Lenders a fully executed and delivered Notice of Borrowing (a) in
the case of a LIBOR Rate Loan denominated in Dollars, not later than 11:00 a.m.
(New York City time), at least three (3) Business Days in advance of the
proposed Credit Date; (b) in the case of a LIBOR Rate Loan denominated in
an Alternative Currency, not later than 11:00 a.m. (New York City time),
in each case at least four (4) Business Days in advance of the proposed
Credit Date; or (c) in the case of a Base Rate


 


24





















 


Loan, not later than 11:00 a.m. (New York City
time), on the proposed Credit Date. 
Except as otherwise provided herein, a Notice of Borrowing for a
Revolving Loan that is a LIBOR Rate Loan shall be irrevocable on and after the
related Interest Rate Determination Date, and the applicable Credit Party shall
be bound to make a borrowing in accordance therewith.  Each Notice of Borrowing shall specify the
following information with respect to any Revolving Loan requested therein in
compliance with Section 2.1A:


 


(a)                                       the Currency;


 


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


 


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


 


(d)                                      whether such Revolving Loan is to be
a Base Rate Loan or a LIBOR Rate Loan;


 


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


 


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


 


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


 


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


 


(a)                                       if such Revolving Loan is to be made
in Dollars, not later than 12:00 p.m. (New York City time), in same day
funds in Dollars at the Funding and Payment Office; or


 


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


 


(v)         Except as provided herein, upon satisfaction or waiver
of the conditions precedent specified in Section 3.1 and Section 3.2,
the Administrative Agent shall make the proceeds of such Revolving Loans
available to the applicable Credit Party on the applicable


 


25





















 


Credit Date by causing an amount of same day funds in
the Applicable Currency equal to the proceeds of all such Revolving Loans
received by the Administrative Agent from the Lenders to be credited to the
account of the applicable Credit Party at the Funding and Payment Office or
such other account as may be designated in writing to the Administrative Agent
by the Credit Parties.


 


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


 


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


 


B.             Notice of Issuance. 
Whenever the Borrower desires the issuance of a Letter
of Credit, it shall deliver to the Administrative Agent an Issuance Notice no
later than 12:00 p.m. (New York City time) at least three Business Days in
advance of the proposed date of issuance (in the case of standby letters of
credit) or five Business Days in advance of the proposed date of issuance (in
the case of commercial letters of credit), or in each case such shorter period
as may be agreed to by the Issuing Bank in any particular instance.  Upon satisfaction or waiver of the applicable
conditions set forth in Section 3.2, the Issuing Bank shall issue the
requested Letter of Credit only in accordance with the Issuing Bank’s standard
operating procedures.  Upon the issuance
of any Letter of Credit or amendment or modification to a Letter of Credit, the
Issuing Bank shall promptly notify each Lender of such issuance, which notice
shall be accompanied by a copy of such Letter of Credit or amendment or
modification to a Letter of Credit and the amount of such Lender’s respective
participation in such Letter of Credit pursuant to Section 2.2E.


 


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


 


D.             Reimbursement by the Borrower of Amounts
Drawn or Paid Under Letters of Credit.  In the event
the Issuing Bank has determined to honor a drawing under a Letter of Credit, it
shall immediately notify the Borrower and the
Administrative Agent, and the Borrower shall reimburse the Issuing Bank
on or before the Business Day immediately following the date on which such
drawing is honored (the “Reimbursement Date”) in an amount in Dollars and in
same day funds equal to the amount of such honored drawing; provided,
anything contained herein to the contrary notwithstanding, (i) unless the
Borrower shall have notified the Administrative Agent and the Issuing
Bank prior to 10:00 a.m. (New York City time) on the date such drawing is
honored that the Borrower intends to reimburse the Issuing Bank for
the amount of such honored drawing with funds other than the proceeds of
Revolving Loans, the Borrower shall be deemed to have given a timely Notice of
Borrowing to the Administrative Agent requesting the Lenders to make Revolving
Loans that are Base Rate Loans on the Reimbursement Date in an amount in
Dollars equal to the amount of such honored drawing, and (ii) subject to
satisfaction or waiver of the applicable conditions specified in Section 3.2,
the Lenders shall, on the Reimbursement Date, make Revolving Loans that are
Base Rate Loans in


 


27





















 


the amount of such honored drawing, the proceeds of
which shall be applied directly by the Administrative Agent to reimburse the
Issuing Bank for the amount of such honored drawing; and provided  further,
if for any reason proceeds of Revolving Loans are not received by the Issuing
Bank on the Reimbursement Date in an amount equal to the amount of such honored
drawing, the Borrower shall reimburse the Issuing Bank, on
demand, in an amount in same day funds equal to the excess of the amount of
such honored drawing over the aggregate amount of such Revolving Loans, if any,
which are so received.  Nothing in this Section 2.2D
shall be deemed to relieve any Lender from its obligation to make Revolving
Loans on the terms and conditions set forth herein, and the
Borrower shall retain any and all rights it may have against any Lender
resulting from the failure of such Lender to make such Revolving Loans under
this Section 2.2D.


 


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


 


F.               Obligations Absolute.  The obligation of the
Borrower to reimburse the Issuing Bank for drawings
honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Lenders pursuant to Section 2.2D and the obligations of
Lenders under Section 2.2E


 


28





















 


shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms hereof under all circumstances
including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim,
set-off, defense or other right which the Borrower or any
Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting),
the Issuing Bank, any Lender or any other Person or, in the case of a Lender,
against the Borrower, whether in connection herewith, the
transactions contemplated herein or any unrelated transaction (including any
underlying transaction between the Borrower or one of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured); (iii) any draft
or other document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (iv) payment by the Issuing
Bank under any Letter of Credit against presentation of a draft or other
document which does not strictly comply with the terms of such Letter of
Credit; (v) the occurrence of any Material Adverse Effect; (vi) any
breach hereof or any other Loan Document by any party thereto; (vii) any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing; or (viii) the fact that an Event of Default or a Potential
Event of Default shall have occurred and be continuing; provided, in
each case, that payment by the Issuing Bank under the applicable Letter of
Credit shall not have constituted gross negligence or willful misconduct of the
Issuing Bank under the circumstances in question.


 


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


 


2.3                               Pro
Rata Shares; Availability of Funds; UCP.


 


A.             Pro Rata Shares. 
All Revolving Loans shall be made, and all participations purchased, by
the Lenders (or, if applicable, by their Affiliates) simultaneously and
proportionately to their respective Pro Rata Shares, it being understood that
no Lender shall be responsible for any default by any other Lender in such
other Lender’s obligation to make a Revolving Loan requested hereunder or
purchase a participation required hereby nor shall any Revolving Commitment of
any Lender be increased or decreased as a result of a default by any other
Lender in such other Lender’s obligation to make a Revolving Loan requested
hereunder or purchase a participation required hereby.


 


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


 


29





















 


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


 


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


 


2.4                               The
Register; Evidence of Debt; Revolving Loan Notes.


 


A.             Register.


 


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


 


(ii)          The Credit Parties, the Administrative Agent and the
Lenders shall deem and treat the Persons listed as Lenders in the Register as
the holders and owners of the corresponding Revolving Commitments and Revolving
Loans listed therein for all purposes hereof, and no assignment or transfer of
any such Revolving Commitment or Revolving Loan shall be effective, in each
case unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent and


 


30





















 


recorded in the Register as provided in Section 9.1C.  Prior to such recordation, all amounts owed
with respect to the applicable Revolving Commitment or Revolving Loan shall be
owed to the Lender listed in the Register as the owner thereof, and any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Revolving Commitments or Revolving Loans.


 


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


 


C.             Revolving Loan Notes.  The Borrower shall execute and deliver on the
Effective Date to each Lender (or the Administrative Agent for that Lender) a
Revolving Loan Note to evidence such Lender’s Revolving Loans, in the principal
amount of that Lender’s Revolving Commitment and with other appropriate
insertions.  If so requested by any
Lender by written notice to any Credit Party (with a copy to the Administrative
Agent) at any time after the Effective Date, such Credit Party shall execute
and deliver to such Lender (and/or, if applicable and if so specified in such
notice, to any Person who is an assignee of such Lender pursuant to Section 9.1),
promptly after such Credit Party’s receipt of such notice, a Revolving Loan
Note or Revolving Loan Notes to evidence such Lender’s or such assignee’s
Revolving Loan.


 


2.5                               Interest
on the Revolving Loans.


 


A.             Rate of Interest;
Type of Revolving Loan.


 


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


 


(ii)          The basis for determining the rate of interest with
respect to any Revolving Loan and the Interest Period with respect to any LIBOR
Rate Loan, shall be selected by the applicable Credit Party and notified to the
Administrative Agent and the Lenders pursuant to the applicable Notice of
Borrowing or Conversion/Continuation Notice, as the case may be; provided,
that until the date that the Syndication Agents notify the Borrower that the
primary syndication of the Revolving Loans and the Revolving Commitments has
been completed, as determined by the Syndication Agents, Revolving Loans shall
be maintained as either LIBOR Rate Loans having an Interest Period of no longer
than one (1) month or Base Rate Loans. 
If on any day a Revolving Loan is outstanding with respect to which a
Notice of Borrowing or Conversion/Continuation Notice has not been delivered to
the Administrative Agent in


 


31





















 


accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such
Revolving Loan shall be a Base Rate Loan.


 


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


 


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


 


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


 


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


 


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


 


(iv)      no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Maturity Date;


 


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


 


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


 


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C.             Interest Payments. 
On each Interest Payment Date but in any event no less frequently than
quarterly, the applicable Credit Party shall pay an amount equal to the
aggregate amount of interest that has accrued on such Credit Party’s
outstanding Revolving Loans since the Effective Date or the last Interest
Payment Date, as applicable.  In addition
interest on each Revolving Loan shall be payable in arrears upon any scheduled
payment or prepayment of the Revolving Loans (to the extent accrued on the
amount being prepaid) and at maturity (including final maturity).


 


D.             Default Rate.  Upon the
occurrence and during the continuation of any Event of Default, (i) the
Credit Parties shall no longer have the option to request LIBOR Rate Loans, (ii) each
LIBOR Rate Loan shall convert to a Base Rate Loan at the end of the Interest
Period then in effect for such LIBOR Rate Loan, (iii) upon request of the
Requisite Lenders, the outstanding principal amounts of all LIBOR Rate Loans
shall bear interest (including post-petition interest in any case or proceeding
under the Bankruptcy Code) at a rate per annum equal to two percent (2%) plus
the rate then applicable to LIBOR Rate Loans until the end of the applicable
Interest Period and thereafter at a rate equal to two percent (2%) plus the
rate then applicable to Base Rate Loans, and (iv) upon request of the
Requisite Lenders, all outstanding Base Rate Loans and, to the extent permitted
by applicable law, other Obligations arising hereunder or under any other Loan
Document shall bear interest (including post-petition interest in any case or
proceeding under the Bankruptcy Code) at a rate per annum equal to two percent
(2%) plus the rate then applicable to such Base Rate Loans or such other
Obligations arising hereunder or under any other Loan Document.  Payment or acceptance of the increased rates
of interest provided for in this Section 2.5D is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Agents or
Lenders.


 


E.               Computation of Interest.


 


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


 


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


 


33





















 


are equivalent, and are the rates so determined
multiplied by the actual number of days in the applicable calendar year and
divided by 365 or such other period of time.


 


F.               Conversion/Continuation.


 


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


 


(a)                                        to convert at any time all or any
part of any Dollar-Denominated Revolving Loan equal to $10,000,000 and integral
multiples of $5,000,000 in excess of that amount from one Type of Revolving
Loan to another Type of Revolving Loan; provided, a LIBOR Rate Loan may
only be converted on the expiration of the Interest Period applicable to such
LIBOR Rate Loan unless such Credit Party shall pay all amounts due under Section 2.8
in connection with any such conversion; or


 


(b)                                       upon the expiration of any Interest
Period applicable to any LIBOR Rate Loan, to continue all or any portion of
such Revolving Loan equal to $10,000,000 and integral multiples of $5,000,000
in excess of that amount as a LIBOR Rate Loan.


 


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


 


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


 


H.             Computation of Interest on Reimbursement
Obligations.  Interest payable pursuant to Section 2.5G
shall be computed on the basis of a 365/366-day year for the actual
number of days elapsed in the period during which it accrues, and shall be
payable on demand or, if no demand is made, on the date on which the related
drawing under a Letter of Credit is reimbursed in full.  Promptly upon receipt by the Issuing Bank of
any payment of interest pursuant to Section 2.5G, the Issuing Bank shall
distribute to each Lender, out of the interest received by the Issuing Bank in
respect of the period from the date such drawing is honored to,


 


34





















 


but excluding, the date on which the Issuing Bank is
reimbursed for the amount of such drawing (including any such reimbursement out
of the proceeds of any Revolving Loans), the amount that such Lender would have
been entitled to receive in respect of the letter of credit fee that would have
been payable in respect of such Letter of Credit for such period if no drawing
had been honored under such Letter of Credit. 
In the event the Issuing Bank shall have been reimbursed by the Lenders
for all or any portion of such honored drawing, the Issuing Bank shall
distribute to each Lender which has paid all amounts payable by it under Section 2.2E
with respect to such honored drawing such Lender’s Pro Rata Share of any
interest received by the Issuing Bank in respect of that portion of such
honored drawing so reimbursed by the Lenders for the period from the date on
which the Issuing Bank was so reimbursed by the Lenders to but excluding the
date on which such portion of such honored drawing is reimbursed by the
Borrower.


 


I.                  Additional Interest on LIBOR Rate
Loans.  Each Credit Party shall pay to each Lender, so
long as and to the extent such Lender shall be required under regulations of
the Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including “Eurocurrency
liabilities” (as such term is defined in Regulation D), additional interest on
the unpaid principal amount of each Revolving Loan of such Lender that is a
LIBOR Rate Loan, from the date of such Revolving Loan until such principal
amount is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (a) the LIBOR rate for the applicable
Interest Period for such Revolving Loan from (b) the rate obtained by
dividing such LIBOR rate by a percentage equal to 100% minus the Applicable
Reserve Requirement (expressed as a percentage) of such Lender for such
Interest Period, payable on each date on which interest is payable on such
Revolving Loan.  Such Lender shall as
soon as practicable provide notice to the Administrative Agent and the Borrower
of any such additional interest arising in connection with such Revolving Loan,
which notice shall be conclusive and binding, absent demonstrable error.


 


2.6                               Fees.


 


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


 


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


 


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


 


(b)                                      Utilization Fee: From the Effective Date until the
Maturity Date, in the event that outstanding Revolving Loans exceed 33% of the
total Revolving Commitments, a utilization fee (the “Utilization Fee”) of 0.125% will be added to the Applicable
Margin for Revolving Loans.  The
Utilization Fee will be payable to each Lender ratably in accordance with its
then current Revolving Commitment on each Interest Payment Date; and


 


35





















 


(c)                                       Letter of Credit Fee: From the Effective Date until the
Maturity Date, the Borrower shall pay letter of credit fees to each Lender,
ratably in accordance with its then current Revolving Commitment, equal to (1) the
Applicable Margin for Revolving Loans that are LIBOR Rate Loans, times (2) the
average aggregate daily maximum amount available to be drawn under all Letters
of Credit (regardless of whether any conditions for drawing could then be met
and determined as of the close of business on any date of determination).


 


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


 


(a)                                       a fronting fee equal to 0.250%, per
annum, times the average aggregate daily maximum amount available to be drawn
under all Letters of Credit (determined as of the close of business on any date
of determination); and


 


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


 


(iii)       All fees referred to in Section 2.6(i) and
2.6(ii)(a) shall be calculated on the basis of a 360-day year and
the actual number of days elapsed and shall be payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year during the
Revolving Commitment Period, commencing on the first such date to occur after
the Effective Date, and on the Maturity Date.


 


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


 


2.7                               Provisions
Regarding Payments.


 


A.             Voluntary Prepayments.


 


(i)             Any time and from time to time:


 


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


 


(b)                                      with respect to LIBOR Rate Loans,
the Credit Parties may prepay any such Revolving Loans on any Business Day in
whole or in part in an aggregate minimum amount of the Dollar Amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount.


 


36





















 


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


 


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


 


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


 


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


 


B.             Voluntary Revolving Commitment Reductions.


 


(i)             The Credit Parties may, upon not less than three (3) Business
Days’ prior written or telephonic notice confirmed in writing to the
Administrative Agent (which original written or telephonic notice the
Administrative Agent will promptly transmit by telefacsimile or telephone to
each applicable Lender), at any time and from time to time terminate in whole
or permanently reduce in part, without premium or penalty, the Revolving
Commitments in an amount up to the amount by which the Revolving Commitments
exceed the Total Utilization of Revolving Commitments at the time of such proposed
termination or reduction; provided, any such partial reduction of the
Revolving Commitments shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount.


 


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


 


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


 


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


 


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


 


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


 


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


 


37





















 


third, to cash collateralize Letters of Credit; and


 


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


 


E.                                      General
Provisions Regarding Payments.


 


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


 


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


 


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


 


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


 


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


 


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


 


(vii)   Non-Conforming Payments. 
The Administrative Agent shall deem any payment by or on behalf of any
Credit Party hereunder that is not made in same day funds prior


 


38





















 


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


 


2.8                               Increased
Costs; Taxes.


 


A.             Compensation for Increased Costs and
Taxes.  Subject to the provisions of Section 2.8B
(which shall be controlling with respect to the matters covered thereby), in
the event that any Lender shall determine (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto)
that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or Governmental
Authority, in each case that becomes effective after the date hereof, or
compliance by such Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law):


 


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


 


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


 


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


 


and the result of
any of the foregoing is to increase the cost to such Lender of agreeing to
make, making or maintaining Revolving Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, the Credit Parties shall promptly pay
to such Lender, upon receipt of the statement


 


39





















 


referred to in the
next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction in amounts
received or receivable hereunder.  Such
Lender shall deliver to the Credit Parties (with a copy to the Administrative
Agent) a written statement, setting forth in reasonable detail the basis for,
and a calculation in reasonable detail of, the additional amounts owed to such
Lender under this Section 2.8A, which statement shall be conclusive and binding
upon all parties hereto absent manifest error.


 


B.                                    Withholding
of Taxes.


 


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


 


(ii)          Grossing-up of Payments. 
If any Credit Party or any other Person is required by law to make any
deduction or withholding on account of any such Tax from any sum paid or
payable by such Credit Party to the Administrative Agent or any Lender under
any of the Loan Documents:


 


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


 


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


 


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


 


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


 


40





















 


parties of such deduction, withholding or payment and
of the remittance thereof to the relevant taxing or other authority.


 


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


 


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


 


(b)                                      Each Lender required to deliver any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters pursuant to Section 2.8B(iii)(a) hereby
agrees, from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall promptly (1) deliver
to Administrative Agent for transmission to the Borrower two new original
copies of Internal Revenue Service Form W-8BEN or W-8ECI, or a
Certificate re Non-Bank Status and two (2) original copies of Internal
Revenue Service Form W-8BEN (or any successor form), as the case may
be, properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested
by the Credit Parties to confirm or establish that such Lender is not subject
to deduction or withholding of United States federal income tax with respect to
payments to such Lender under the Loan Documents or (2) notify
Administrative Agent and the Borrower of its inability to deliver any such
forms, certificates or other evidence.


 


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


 


41





















 


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


 


(v)         Evidence of Exemption from Canadian
or Irish Withholding Tax.  Any Lender
that is entitled to an exemption from or reduction of withholding tax imposed
by Canada or Ireland with respect to payments under this Agreement shall
deliver to the relevant Subsidiary Borrower (with a copy to the Administrative
Agent) within 15 Business Days following receipt of the written notice referred
to below, such properly completed and executed documentation as is reasonably
requested by such Subsidiary Borrower or the Administrative Agent in order to
permit such payments to be made with the benefit of such exemption or reduction
(and shall make application to the relevant Governmental Authority for
exemption or reduced rates if it is the party required by law to do so), provided that such Lender has
received written notice from such Subsidiary Borrower or the Administrative
Agent identifying the requirements for such exemption or reduction, supplying
all applicable documentation and specifying the time period within which
documentation is to be provided under this Section 2.8B(iv) (or such
application is to be made).  Without
limiting the Lenders’ obligations under the preceding sentence, each Lender
agrees that it will, without material cost or other material disadvantage (as
determined in such Lender’s good faith judgment), cooperate with such
Subsidiary Borrower to minimize the applicable withholding tax burdens in
Canada and Ireland.  If any Lender
becomes subject to any Tax because it fails to comply with this Section 2.8B(iv),
each Subsidiary Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Tax.  The Administrative Agent agrees that it will
provide administrative and ministerial assistance to each relevant Subsidiary
Borrower with respect to any payments made by such Subsidiary Borrower to the
Lenders, and the calculation, reporting, withholding and remitting of any Taxes
imposed by Canada or Ireland to the appropriate Governmental Authority.  Notwithstanding the foregoing, (a) the
Subsidiary Borrowers shall retain primary responsibility for ascertaining the
requirements of Applicable Law and providing to the Lenders the written notice
described in the first sentence of this Section 2.8B(iv), and (b) no
failure by the Administrative Agent to meet any obligations under this Section 2.8B(iv) shall
operate to excuse any Subsidiary Borrower from its obligations to the Lenders
under this Section 2.8B(iv).


 


C.             Capital Adequacy Adjustment. 
In the event that any Lender shall have determined that the adoption,
effectiveness, phase-in or applicability after the Effective Date of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or any change
therein after


 


42





















 


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


 


2.9                               Special
Provisions Governing LIBOR Rate Loans.


 


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


 


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


 


B.             Illegality or Impracticability of LIBOR
Rate Loans.  In the event that on any date any
Lender shall have determined (which determination shall be final and conclusive
and binding upon all parties hereto but shall be made only after consultation
with Credit Parties and the Administrative Agent) that the making, maintaining
or continuation of its LIBOR Rate Loans (i) has become unlawful as a
result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this


 


43





















 


Agreement which materially and adversely affect the
interbank LIBOR market or the position of such Lender in that market, then, and
in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile
or by telephone confirmed in writing) to the Credit Parties and the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each other Lender).  Thereafter (a) the obligation of the
Affected Lender to make Revolving Loans as, or to convert Revolving Loans to,
LIBOR Rate Loans shall be suspended until such notice shall be withdrawn by the
Affected Lender, (b) to the extent such determination by the Affected
Lender relates to a LIBOR Rate Loan denominated in Dollars, then being
requested by a Credit Party pursuant to a Notice of Borrowing or a
Conversion/Continuation Notice, the Affected Lender shall make such Revolving
Loan as (or continue such Revolving Loan as or convert such Revolving Loan to,
as the case may be) a Base Rate Loan, (c) the Affected Lender’s obligation
to maintain its outstanding LIBOR Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the Affected
Loans or when required by law, and (d) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such
termination.  Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to a LIBOR Rate Loan then being requested by a Credit Party
pursuant to a Notice of Borrowing or a Conversion/Continuation Notice, such
Credit Party shall have the option, subject to the provisions of Section 2.9C,
to rescind such Notice of Borrowing or Conversion/Continuation Notice as to all
Lenders by giving notice (by telefacsimile or by telephone confirmed in
writing) to the Administrative Agent of such rescission on the date on which
the Affected Lender gives notice of its determination as described above (which
notice of rescission the Administrative Agent shall promptly transmit to each
other Lender).  Except as provided in the
immediately preceding sentence, nothing in this Section 2.9B shall affect
the obligation of any Lender other than an Affected Lender to make or maintain
Revolving Loans as, or to convert Revolving Loans to, LIBOR Rate Loans in
accordance with the terms hereof.


 


C.             Compensation For Breakage.  The Credit Parties shall compensate each Lender upon
written request by such Lender (which request shall set forth the basis for
requesting such amounts and a calculation thereof in reasonable detail) for all
reasonable losses, expenses and liabilities (including any interest paid by
such Lender to lenders of funds borrowed by it to make or carry its LIBOR Rate
Loans and any loss, expense or liability sustained by such Lender in connection
with the liquidation or re-employment of such funds, but excluding lost
profits) which that Lender may sustain: (i) if for any reason (other than
a default by such Lender) a Revolving Loan that is a LIBOR Rate Loan does not
occur on a date specified therefor in a Notice of Borrowing or a telephonic
request for borrowing, or a conversion to or continuation of any LIBOR Rate
Loan does not occur on a date specified therefor in a Conversion/Continuation
Notice or a telephonic request for conversion or continuation, (ii) if any
prepayment or other principal payment of, or any conversion of, any of its
LIBOR Rate Loans occurs on a date other than the last day of an Interest Period
applicable to such LIBOR Rate Loan or (iii) if any prepayment of any LIBOR
Rate Loan made by such Lender is not made on any date specified in a notice of
prepayment given by the Borrower.


 


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


 


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


 


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


 


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


 


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


 


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


 


2.11                        Defaulting
Lenders.


 


Anything contained herein
to the contrary notwithstanding, in the event that any Lender defaults (a “Defaulting Lender”) in its obligation to
fund (a “Funding Default”) any


 


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Revolving Loan or
its portion of any unreimbursed payment under Section 2.2D (in each case,
a “Defaulted Loan”), then (a) during
any Default Period with respect to such Defaulting Lender, such Defaulting
Lender shall be deemed not to be a “Lender” for purposes of voting on any
matters (including the granting of any consents or waivers) with respect to any
of the Loan Documents; (b) to the extent permitted by Applicable Law,
until such time as the Default Excess with respect to such Defaulting Lender
shall have been reduced to zero, (i) any voluntary prepayment of the
Revolving Loans shall, if the applicable Credit Party so directs at the time of
making such voluntary prepayment, be applied to the Revolving Loans of other
Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the
Revolving Exposure of such Defaulting Lender were zero, and (ii) any
mandatory prepayment of the Revolving Loans shall, if the applicable Credit
Party so directs at the time of making such mandatory prepayment, be applied to
the Revolving Loans of other Lenders (but not to the Revolving Loans of such
Defaulting Lender) as if such Defaulting Lender had funded all Defaulted Loans
of such Defaulting Lender, it being understood and agreed that the applicable
Credit Party shall be entitled to retain any portion of any mandatory
prepayment of the Revolving Loans that is not paid to such Defaulting Lender
solely as a result of the operation of the provisions of this clause (b); (c) such
Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans and
such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage shall be
excluded for purposes of calculating the Facility Fee payable to Lenders in
respect of any day during any Default Period with respect to such Defaulting
Lender, and such Defaulting Lender shall not be entitled to receive any
Facility Fee pursuant to Section 2.6 with respect to such Defaulting
Lender’s Revolving Commitment in respect of any Default Period with respect to
such Defaulting Lender; and (d) the Total Utilization of Loan Revolving
Commitments as at any date of determination shall be calculated as if such Defaulting
Lender had funded all Defaulted Loans of such Defaulting Lender.  No Revolving Commitment of any Lender shall
be increased or otherwise affected, and, except as otherwise expressly provided
in this Section 2.11, performance by the Credit Parties of their
Obligations shall not be excused or otherwise modified as a result of any
Funding Default or the operation of this Section 2.11.  The rights and remedies against a Defaulting
Lender under this Section 2.11 are in addition to other rights and
remedies which the Credit Parties may have against such Defaulting Lender with
respect to any Funding Default and which the Administrative Agent or any Lender
may have against such Defaulting Lender with respect to any Funding Default.


 


2.12                        Removal
or Replacement of a Lender.


 


Anything contained herein
to the contrary notwithstanding, in the event that any Lender shall give notice
to the Credit Parties that such Lender is an Affected Lender or that such
Lender is entitled to receive payments under Section 2.8 or 2.9, if the
circumstances which have caused such Lender to be an Affected Lender or which
entitle such Lender to receive such payments shall remain in effect, and such
Lender shall fail to withdraw such notice within five (5) Business Days
after receipt by such Lender of a written request for such withdrawal from a
Credit Party; then, with respect to each such Lender (the “Terminated Lender”), the Credit Parties
may, by giving written notice to the Administrative Agent and any Terminated
Lender of its election to do so, elect to cause such Terminated Lender (and
such Terminated Lender hereby irrevocably agrees) to assign its outstanding
Revolving Loans in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with
the provisions of Section 9.1 for a purchase price equal to the
outstanding principal amount of the Revolving Loans assigned and accrued
interest


 


46





















 


thereon and
accrued and theretofore unpaid fees owing to such Terminated Lender under Section 2.6
through the date of assignment, to be paid by the Replacement Lender; provided,
that concurrently with such assignment, the Credit Parties shall pay any
amounts payable to such Terminated Lender to the date of such assignment pursuant
to Sections 2.8 or 2.9 or otherwise as if it were a prepayment.  Upon the completion of such assignment and
the prepayment of all amounts owing to any Terminated Lender, such Terminated
Lender shall no longer constitute a “Lender” for purposes hereof; provided,
that any rights of such Terminated Lender to indemnification hereunder shall
survive as to such Terminated Lender.


 


2.13                        Mitigation.


 


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


 


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


 


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SECTION 3.                            CONDITIONS PRECEDENT


 


3.1                               Conditions
to Effectiveness.


 


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


 


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


 


(i)             sufficient copies of each Loan Document originally
executed and delivered by the Borrower for each Lender;


 


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


 


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


 


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


 


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


 


(vi)      an officer’s certificate from an officer of the
Borrower substantially in the form of Exhibit IX, in form and
substance satisfactory to the Administrative Agent, to the effect that all
representations and warranties contained in this Agreement and the other Loan
Documents are true, correct and complete (other than any such representation or
warranty that expressly relates to an earlier date, in which case such
representation or warranty shall have been true, correct and complete as of
such earlier date); that the Borrower and its Subsidiaries are not in violation
of any of the covenants contained in this Agreement and the other Loan
Documents; that no event shall have occurred and be continuing or would result
from the consummation of the transactions contemplated by this Agreement, that
would constitute an Event of Default or a Potential Event of Default; and that
the Borrower has satisfied each of the conditions to effectiveness set forth in
this Section 3.1;


 


48





















 


(vii)                                                   the Form 10, in form and
substance reasonably satisfactory to the Agents and the Lead Arrangers; and


 


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


 


B.             Opinions of Counsel. 
The Administrative Agent shall have received originally executed copies
of one or more favorable written opinions of (i) Mayer, Brown, Rowe &
Maw,  LLP, special New York and Delaware
counsel for the Borrower and (ii) any additional legal opinions reasonably
requested by the Administrative Agent, each in form and substance reasonably
satisfactory to the Administrative Agent and its counsel, dated as of the
Effective Date.


 


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


 


D.                                    The
Distribution.


 


(i)             The Administrative Agent shall have received a fully
executed copy of each of the Related Agreements and each such Related Agreement
shall be in form and substance satisfactory to the Agents.


 


(ii)          All conditions to the consummation of the Distribution
shall have been satisfied or waived (any such waiver to be with the consent of
the Administrative Agent and the Syndication Agents).  The Distribution shall have become effective
in accordance with the terms of the Separation and Distribution Agreement and
the Form 10.


 


(iii)       The Administrative Agent shall have received evidence
satisfactory thereto that all governmental, shareholder and material third
party consents and approvals necessary in connection with the Distribution
shall have been obtained and remain in effect.


 


(iv)      The Administrative Agent shall be
satisfied that the proposed tax and accounting treatment of the Distribution
and the proposed corporate and capital structure of the Borrower and its
Subsidiaries after giving effect to the Distribution, (A) does not differ
materially from the treatment and structure previously disclosed in writing by
the Borrower to the Administrative Agent and the Syndication Agents and (B) is
otherwise reasonably satisfactory to the Administrative Agent and the
Syndication Agents.


 


(v)         The Administrative Agent shall have
received copies of all other documents, certificates and instruments reasonably
requested thereby, with respect to the Distribution, and each such document,
certificate and instrument shall be in form and substance reasonably
satisfactory to the Agents.


 


E.               Ratings.  The Lead
Arrangers shall have received evidence satisfactory to them that the Borrower’s
stand-alone senior unsecured rating shall be at least Baa3 from Moody’s and BBB
from S&P, each with at least a stable outlook.


 


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F.               Existing Indebtedness.  The Administrative Agent shall have received
evidence reasonably satisfactory to it that, on the Effective Date, the
Borrower and its Subsidiaries have no Indebtedness other than pursuant to the
Bridge Facility and as permitted by Section 6.2.


 


G.                                    Authorizations
and Consents.


 


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


 


(ii)          Each of the Lenders shall have received, at least two (2) Business
Days in advance of the Effective Date, all documentation and other information
required by Governmental Authorities under applicable “know-your-customer” and
anti-money laundering rules and regulations, including as required by the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.


 


H.             Material Adverse Effect.   Since December 31, 2003, there shall not
have occurred a Material Adverse Effect.


 


I.                  No Litigation.  (i) No action, suit, investigation,
litigation, arbitration or proceeding (whether administrative, judicial or
otherwise) affecting the Borrower or any of its Subsidiaries shall be pending
or threatened before any court, Governmental Authority or arbitrator that could
be reasonably expected to, individually or in the aggregate, (A) have a
Material Adverse Effect, other than the matters set forth in the Form 10
or in the Borrower’s filings with the Securities and Exchange Commission (the “Disclosed Litigation”), (B) materially impair the transactions
contemplated by the Loan Documents or (C) in any manner call into question
or challenge the Distribution, this Agreement or the making of the Revolving
Loans and (ii) no material adverse change in the status, or financial
effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from
that described in the Form 10 and in the Borrower’s filings with the
Securities and Exchange Commission shall have occurred.


 


J.               Solvency Assurances.  The Administrative Agent shall have
received a Financial Condition Certificate from the chief financial officer of
the Borrower, dated the Effective Date, substantially in the form of Exhibit V
annexed hereto and satisfactory to the Administrative Agent, and with
appropriate attachments demonstrating that, before and after giving effect to
the Distribution and any Debt Issuance and the other transactions contemplated
by the Loan Documents, the Borrower and its Subsidiaries will be Solvent.


 


50










 













 


K.            Financial
Statements; Projections.  The Lenders shall have received from the
Borrower in respect of itself and its Subsidiaries, (i) the historical
financial statements as provided in Section 4.4 of this Agreement, (ii) pro
forma consolidated balance
sheets of the Borrower and its Subsidiaries as of the Effective Date, prepared
in accordance with GAAP and reflecting the consummation of the related
financing and the other transactions contemplated by the Loan Documents, which
pro forma financial statements shall be in form and substance satisfactory to
Lenders and (iii) the Projections; it being acknowledged by the Lenders
that each of the foregoing have been delivered as of the date hereof.


 


L.            Market Conditions. 
There shall have not occurred or become known to any of the Lead
Arrangers, any of the Agents or any of the Lenders any circumstance, change or
condition in the financial or capital markets generally that, in the reasonable
judgment of the Lead Arrangers, could materially impair the market for Securities
or the consummation of a Debt Issuance by the Borrower, as described in Section 5.11
of the Bridge Facility, to refinance the Bridge Facility.


 


M.           Evidence of Insurance. 
The Administrative Agent shall have received a certificate from the
Borrower’s insurance broker or other evidence satisfactory to it that all
insurance required to be maintained pursuant to Section 5.4 is in full
force and effect.


 


3.2          Conditions Precedent
to each Credit Extension 


 


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


 


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


 


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


 


C.            Representations and
Warranties.  The representations and warranties
contained herein (excluding, except on the Effective Date, the representations
and warranties made in the last sentence of Section 4.4 (Financial
Condition), the first sentence of Section 4.5 (Material Adverse Effect)
and the first sentence of Section 4.9 (Litigation)) shall be true, correct
and complete in all material respects on and as of the date of such Credit
Extension to the same extent as though made on and as of that date, except to
the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall have been
true, correct and complete in all material respects on and as of such earlier
date.


 


D.            No Default.  No event shall have occurred and be continuing, or
would result from the consummation of the borrowing of the Revolving Loans or
the issuance of any Letter of Credit hereunder, that would constitute an Event
of Default or a Potential Event of Default.


 


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


 


SECTION 4.         REPRESENTATIONS AND WARRANTIES


 


In order to induce the
Agents and the Lenders to enter into this Agreement and to induce the Lenders
to make each Credit Extension hereunder, each Credit Party represents and
warrants to each Agent, each Lender and the Issuing Bank that the following
statements are true, correct and complete:


 


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


 


A.            Organization and
Powers.  Each Credit
Party and each of their respective Subsidiaries is duly organized,
validly existing and in good standing, as applicable, under the laws of its
jurisdiction of organization.  Each
Credit Party and each of their respective Subsidiaries has all requisite
power and authority to own, lease and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter into the
Loan Documents to which it is a party and to carry out the transactions
contemplated thereby.


 


B.            Qualification and
Good Standing.  Each Credit Party and each of their
respective Subsidiaries is duly qualified to do business and in good standing,
as applicable, in every jurisdiction in which its assets are located and
wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and could not reasonably be expected to have a Material Adverse Effect.


 


C.            Subsidiaries.  Schedule 4.1C sets forth a list of the Subsidiaries of each
Credit Party as of the Effective Date.


 


4.2          Authorization of
Borrowing, etc.


 


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


 


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


 


52





















 


any Contractual Obligation of such Credit Party or any
of its Subsidiaries, except for such approvals or consents which will be
obtained on or before the Effective Date and disclosed in writing to
Administrative Agent.


 


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


 


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


 


4.3          Valid Issuance of
Securities.


 


The Capital Stock of the
Borrower and each of its Subsidiaries has been duly and validly issued, fully
paid and nonassessable.


 


4.4          Financial Condition.


 


The Borrower has
heretofore delivered to the Administrative Agent the audited consolidated
balance sheet of the Borrower and its Subsidiaries as at December 31, 2003
and the related audited consolidated statements of income, stockholders’ equity
and cash flows of the Borrower for the Fiscal Year then ended, together with
all related notes and schedules thereto. All such statements were prepared in
conformity with GAAP and fairly present, in all material respects, the
financial position of the entities described in such financial statements as at
the respective dates thereof and the results of operations and cash flows of
the entities described therein for each of the periods then ended, subject, in
the case of any such unaudited financial statements, to changes resulting from
audit and normal year-end adjustments. 
Neither the Borrower nor any of its Subsidiaries has any contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment that is not reflected in the foregoing financial
statements or the notes thereto and which in any such case could reasonably be
expected to have a Material Adverse Effect.


 


4.5          No Material Adverse
Change; No Restricted Payments.


 


Since December 31,
2003, no event or change has occurred that has caused or evidences, or could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.  Neither the
Borrower nor any of its Subsidiaries has, directly or indirectly, declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Payment or agreed to do so, except as permitted by Section 6.5.


 


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4.6          Indebtedness.


 


Schedule 4.6 is a complete and correct listing of all
Indebtedness of the Borrower and its Subsidiaries, other than Indebtedness
permitted by Section 6.2 (excluding Section 6.2(ii)), in excess of
$1,000,000 as of the Effective Date.  The
Borrower and its Subsidiaries have performed and are in compliance with all of
the terms of such Indebtedness and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
notice or lapse of time or both would constitute such a default or event of
default on the part of the Borrower or any of its Subsidiaries exists with
respect to any such Indebtedness.


 


4.7          Title to Properties;
Liens.


 


The Borrower and each of
its Subsidiaries has (i) good and marketable title in fee simple (in the
case of fee interests in real property), (ii) valid leasehold interests in
(in the case of leasehold interests in real or personal property), or (iii) good
and marketable title to (in the case of all other personal property), all of
its properties and assets reflected in the financial statements referred to in Section 4.4
or in the most recent financial statements delivered pursuant to Section 5.1,
in each case except for assets disposed of since the date of such financial
statements as otherwise permitted under Section 6.6.  Except as permitted by this Agreement or as
contemplated by the Loan Documents, all such properties and assets are free and
clear of Liens.


 


4.8          Intellectual Property
Matters.


 


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


 


4.9          No Litigation;
Compliance with Laws.


 


Except for the Disclosed
Litigation, there are no actions, suits, proceedings (whether administrative,
judicial or otherwise), litigations, arbitrations or governmental
investigations (whether or not purportedly on behalf of the Borrower or any of
it Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), that are
pending or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or any of its Subsidiaries or any property of the Borrower or any
of its Subsidiaries and that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.  Neither the Borrower nor any of its
Subsidiaries (i) is in 


 


54





















 


violation of any
Applicable Laws (including, but not limited to, Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect or (ii) is subject to or in default with respect
to any final judgments, writs, injunctions, decrees, rules or regulations
of any Governmental Authority, domestic or foreign, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect.


 


4.10        Payment of Taxes.


 


Except as otherwise
permitted under Section 5.5, all federal income Tax and other material Tax
returns and reports of the Borrower and its Subsidiaries required to be filed by
any of them have been timely filed, and all Taxes shown on such Tax returns to
be due and payable and all material assessments, fees and other governmental
charges upon the Borrower and its Subsidiaries and upon their respective
properties, assets, income, businesses and franchises which are due and payable
have been paid when due and payable. 
Neither the Borrower nor any of its Subsidiaries knows of any proposed
Tax assessment against the Borrower or any of its Subsidiaries which is not
being actively contested by the Borrower or such Subsidiary in good faith and
by appropriate proceedings; provided, such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor.


 


4.11        Employee Matters.


 


Neither the Borrower nor
any of its Subsidiaries is engaged in any unfair labor practice that could
reasonably be expected to have a Material Adverse Effect.  There is (a) no unfair labor practice
complaint pending against the Borrower or any of its Subsidiaries, or to the
best knowledge of the Borrower, threatened against any of them before the
National Labor Relations Board and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement that is so pending
against the Borrower or any of its Subsidiaries or to the knowledge of the
Borrower, threatened against any of them, (b) no strike or work stoppage in
existence or threatened involving the Borrower or any of its Subsidiaries, and (c) to
the knowledge of the Borrower, no union representation question existing with
respect to the employees of the Borrower or any of its Subsidiaries and, to the
knowledge of the Borrower, no union organization activity that is taking place,
except (with respect to any matter specified in clause (a), (b) or (c) above,
either individually or in the aggregate) such as could not reasonably be
expected to have a Material Adverse Effect.


 


4.12        No Default.


 


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


 


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4.13        Governmental Regulation.


 


Neither the Borrower nor
any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act or the Investment Company
Act of 1940 or under any federal or state statute or regulation which may limit
its ability to incur Indebtedness or which may otherwise render all or any
portion of the Obligations unenforceable. 
Neither the Borrower nor any of its Subsidiaries is a “registered
investment company” or a company “controlled” by a “registered investment
company” or a “principal underwriter” of a “registered investment company” as
such terms are defined in the Investment Company Act of 1940.


 


4.14        Securities Activities.


 


Neither the Borrower nor
any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock.  No part of
the proceeds of the Loans will be used to purchase or carry any Margin Stock or
to extend credit to others for the purpose of purchasing or carrying any Margin
Stock in violation of the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.


 


4.15        Employee Benefit Plans.


 


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


 


B.            No material liability to the PBGC
(other than required premium payments) or the Internal Revenue Service has been
or is expected to be incurred by the Borrower or any of its ERISA Affiliates
with respect to any Employee Benefit Plan, and no ERISA Event has occurred or
is reasonably expected to occur, the liability for which has not been satisfied
in full or is immaterial in amount.


 


C.            The present value of the accrued
benefit liabilities under each Pension Plan sponsored, maintained or
contributed to by the Borrower or any of its ERISA Affiliates (determined as of
the end of the most recent plan year on the basis of the actuarial assumptions
specified for funding purposes in the most recent actuarial valuation for such
Pension Plan) as shown in the most recent Schedule B, and taken in the
aggregate, did not exceed the aggregate current value of the assets of such
Pension Plans by more than $85,000,000.


 


D.            As of the most recent valuation date
for each Multiemployer Plan for which the actuarial report is available, the
potential liability of the Borrower or any of its ERISA Affiliates for a
complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203
of ERISA), when aggregated with such potential liability for a complete
withdrawal from all 


 


56





















 


Multiemployer Plans, based on information available
pursuant to Section 4221(e) of ERISA is not expected to be material.  The Borrower and each of its Subsidiaries and
each of their ERISA Affiliates have complied in all material respects with the
requirements of Section 515 of ERISA with respect to each Multiemployer
Plan and are not in material “default” (as defined in Section 4219(c)(5) of
ERISA) with respect to payments to a Multiemployer Plan.


 


4.16        Certain Fees.


 


No broker’s or finder’s
fee or commission will be payable with respect to this Agreement or any of the
transactions contemplated hereby except for such fees payable under Section 2.6
or as otherwise disclosed to the Lead Arrangers and the Agents, and the Credit
Parties hereby indemnify each of the Lead Arrangers and each of the Agents and
each Lender against, and agrees that it will hold each of the Lead Arrangers
and each of the Agents and each Lender harmless from, any claim, demand or
liability for any such broker’s or finder’s fees alleged to have been incurred
in connection herewith or therewith and any expenses (including reasonable
fees, expenses and disbursements of counsel) arising in connection with any
such claim, demand or liability.


 


4.17        Environmental
Protection.


 


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


 


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


 


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


 


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


 


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


 


57





















 


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


 


4.18        Solvency.


 


Each Credit Party,
individually and together with its Subsidiaries, is, and will be, Solvent as of
the Effective Date and as of the initial Credit Date of such Credit Party.


 


4.19        Pari Passu.


 


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


 


4.20        Restrictions.


 


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


 


4.21        Related Agreements.


 


A.            Delivery. 
The Borrower has delivered to the Agents (i) on the Effective Date,
complete and correct copies of each Related Agreement and of all exhibits and
schedules thereto as of the date hereof and (ii) copies of any material
amendment, restatement, supplement or other modification to or waiver of each
Related Agreement entered into after the Effective Date.


 


B.            Representations and
Warranties.  Except to the extent otherwise
expressly set forth herein or in the schedules hereto, and subject to the
qualifications set forth therein, each of the representations and warranties
given by the Borrower or any Subsidiary of the Borrower in any Related
Agreement is true and correct in all material respects as of the Effective Date
(or as of any earlier date to which such representation and warranty
specifically relates).  Notwithstanding
anything in any Related Agreement to the contrary, the representations and
warranties set forth in this Section 4.21 shall, solely for purposes
hereof, survive the Effective Date for the benefit of Lenders.


 


C.            Governmental Authorizations.  On the Effective Date, all Governmental Authorizations
and all other authorizations, approvals and consents of any other Person
required by the Related Agreements or to consummate the Distribution have been
obtained and are in full force and effect.


 


D.            Conditions Precedent.  On the Effective Date, (i) all of the conditions
to effecting or consummating the Distribution set forth in the Related
Agreements have been duly satisfied or, with the consent of the Administrative
Agent and the Syndication Agents, waived, and (ii) the 


 


58





















 


Distribution has been consummated in accordance with
the Related Agreements and in material compliance with all Applicable Laws.


 


4.22        Disclosure.


 


No representation or
warranty of any Credit Party or any of their Subsidiaries contained in any of the Loan Documents or
in any other document, certificate or written statement furnished to any of the
Agents or any of the Lenders by or on behalf of any Credit Party or any of
their Subsidiaries for use in
connection with the transactions contemplated by this Agreement contains any
untrue statement of a material fact or omits to state a material fact (known to such Credit Party or any of its
Subsidiaries in the case of any
document not furnished by any of them) necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. 
Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by any
Credit Party to be reasonable at the time made, it being recognized by the
Agents and the Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by
any such projections may differ from the projected results.  There are no facts known (or which should
upon the reasonable exercise of diligence be known) to any Credit Party or any
of its Subsidiaries (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect and that have not been disclosed herein or in such
other documents, certificates and statements furnished to the Administrative
Agent and each of the Syndication Agents for use in connection with the
transactions contemplated hereby.


 


SECTION 5.         AFFIRMATIVE COVENANTS


 


The Borrower covenants
and agrees that, so long as the Revolving Commitments shall remain in effect
and until payment in full of all Obligations (other than Surviving Obligations)
and cancellation or expiration of all Letters of Credit, unless the provisions
of this Section 5 are waived or amended in accordance with Section 9.5,
the Borrower shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 5.


 


5.1          Financial Statements
and Other Reports.


 


The Borrower will deliver
to Administrative Agent:


 


(i)    Quarterly Financial Statements: as soon as available, and in any
event within 45 days after the end of each of the first three (3) Fiscal
Quarters of each Fiscal Year, the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated statements of income, stockholders’ equity and cash flows
of the Borrower and its Subsidiaries for such Fiscal Quarter and for the period
from the beginning of the then-current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the corresponding figures
for the corresponding periods of the previous Fiscal Year, all in reasonable
detail and certified by the chief financial officer of the Borrower as fairly
presenting, in all material respects, the financial condition of the Borrower
and its Subsidiaries as at the date indicated and the results of their
operations and cash flows for the periods indicated in conformity with GAAP,
subject to the absence of footnotes and changes 


 


59





















 


resulting from audit and normal year-end adjustments;
provided, that the initial delivery of the financial statements required
pursuant to this section 5.1(i) shall be delivered by May 28,
2004;


 


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


 


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


 


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


 


(v)   Notice of Default, etc.: 
promptly upon (and in any event within five (5) Business Days
after) any Responsible Officer of the Borrower obtaining knowledge (a) of
any condition or event that constitutes an Event of Default or Potential Event
of Default or that notice has been given to the Borrower or any of its
Subsidiaries with respect thereto, (b) that any Person has given any
notice to the Borrower or any of its Subsidiaries or taken any other action
with respect to a claimed default or event or condition of the type referred to
in Section 8.2, or (c) of the occurrence of any event or change that
has caused or evidences, either in any case individually or in the aggregate, a
Material Adverse Effect, an Officer’s Certificate specifying the nature and
period of existence of such condition, event or change, or specifying the
notice given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or condition, and
what action the Borrower has taken, is taking and proposes to take with respect
thereto;


 


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(vi)  Notice of Litigation: 
promptly upon (and in any event within five (5) Business Days
after) any officer of any Credit Party obtaining knowledge of (a) the
institution of, or non-frivolous threat of, any action, suit, proceeding,
order, consent decree, settlement (whether administrative, judicial or
otherwise), governmental investigation or arbitration against or affecting the
Borrower or any of its Subsidiaries or any of their respective property,
including of the type described in Section 4.17 (collectively, “Proceedings”) or (b) any material
development in any such Proceeding that, in the case of either (a) or (b) if
adversely determined, could be reasonably expected to have a Material Adverse
Effect, or seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other
information as may be reasonably available to the Borrower or such Subsidiary
to enable Lenders and their counsel to evaluate such matters;


 


(vii) Notice Regarding Contractual Obligations: 
promptly (and in any event within five (5) Business Days) after any
Contractual Obligation of any Credit Party or any of its Subsidiaries is
terminated or amended, except to the extent such termination or amendment could
not reasonably be expected to have a Material Adverse Effect;


 


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


 


(ix)   ERISA:  (i) Promptly
upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA
Event, a written notice specifying the nature thereof, what action the Borrower
or any of its ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the United States Department of Labor or the PBGC with respect
thereto; and (ii) with reasonable promptness, copies of (1) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by
the Borrower or any of its ERISA Affiliates with the Internal Revenue Service
with respect to each Pension Plan; (2) all notices received by the
Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and (3) copies of such other documents or
governmental reports or filings relating to any Employee Benefit Plan as the
Administrative Agent shall reasonably request;


 


(x)    [Reserved.]


 


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


 


(xii)  Public Filings:  promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any of
its Subsidiaries with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of the Securities and
Exchange Commission, or distributed by the Borrower to its shareholders
generally; and


 


61





















 


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


 


5.2          Books and Records;
Lenders Meetings.


 


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


 


5.3          Existence.


 


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


 


5.4          Insurance.


 


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


 


5.5          Payment of Taxes and
Claims.


 


The Borrower will, and
will cause each of its Subsidiaries to, pay all federal income Taxes and other
material Taxes imposed upon it or any of its properties or assets or in respect
of any of its income, businesses or franchises before any penalty or fine
accrues thereon; provided, 


 


62





















 


no such Tax need
be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as adequate reserve or
other appropriate provision, as shall be required in conformity with GAAP shall
have been made therefor.  The Borrower
will not, nor will it permit any of its Subsidiaries to, file or consent to the
filing of any consolidated income Tax return with any Person (other than the
Borrower or any of its Subsidiaries).


 


5.6          Payment and
Performance of Obligations.


 


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


 


5.7          Maintenance of
Properties.


 


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


 


5.8          Compliance with Laws.


 


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


 


5.9          Use of Proceeds.


 


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


 


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


 


5.10        Ownership of Subsidiary
Borrowers.


 


The
Borrower will, at all times, own, directly or indirectly, 100% of the
Capital Stock of each Subsidiary Borrower.


 


5.11        Claims Pari Passu.


 


The Borrower shall ensure
that at all times the Obligations and any other claims of the Lead Arrangers,
the Agents and the Lenders arising hereunder or under any of the other Loan
Documents rank at least pari  passu with the claims of all of the Credit
Parties’ or their 


 


63





















 


Subsidiaries’
other senior unsecured creditors, except those creditors whose claims are
preferred by any bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors’ rights generally.


 


5.12        Further Assurances.


 


At any time or from time
to time upon the request of the Administrative Agent, the Borrower will, and
will cause each of its Subsidiaries to, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and
things as the Administrative Agent may reasonably request in order to effect
fully the purposes of the Loan Documents. 
In furtherance and not in limitation of the foregoing, the Borrower
shall take, and shall cause each of its Subsidiaries to take, such actions as
the Administrative Agent may reasonably request from time to time to ensure
that the Guaranteed Obligations are guarantied by the Guarantor.


 


SECTION 6.  NEGATIVE COVENANTS


 


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


 


6.1          Liens.


 


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


 


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


 


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


 


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


 


(iv)  deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, 


 


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government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money or other Indebtedness) incurred in the ordinary course of
business;


 


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


 


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


 


(vii) Liens securing Indebtedness pursuant to Capital Leases
permitted pursuant to Section 6.2; provided, that such Liens are
only in respect of the property or assets subject to, and secure only, such
Capital Leases;


 


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


 


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


 


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


 


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


 


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


 


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


 


Notwithstanding any of the
foregoing exceptions, the Credit Parties will not, and will not permit any of
their Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
the Capital 


 


65





















 


Stock of any of their
Subsidiaries or any Indebtedness owed to it by the Credit Parties or any of
their Subsidiaries.


 


6.2          Indebtedness.


 


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


 


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


 


(ii)   Indebtedness existing on the Effective Date and set
forth on Schedule 4.6, but, in each case, not any extensions,
renewals or replacements of such Indebtedness except (a) renewals and
extensions expressly provided for in the agreements evidencing any such
Indebtedness as the same are in effect on the date of this Agreement and (b) refinancings
and extensions of any such Indebtedness if the terms and conditions thereof are
not less favorable to the obligor thereon or to the Lenders than the
Indebtedness being refinanced or extended or are otherwise on substantially
then prevailing market terms, and the average life to maturity thereof is
greater than or equal to that of the Indebtedness being refinanced or extended;
provided, such Indebtedness permitted under the immediately preceding
clause (a) or (b) above shall not (A) include Indebtedness of an
obligor that was not an obligor with respect to the Indebtedness being
extended, renewed or refinanced, (B) exceed in a principal amount the
Indebtedness being renewed, extended or refinanced or (C) be incurred,
created or assumed if any Potential Event of Default or Event of Default has
occurred and is continuing or would result therefrom;


 


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


 


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


 


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


 


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


 


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


 


(viii)   Indebtedness (including guarantees of any such
Indebtedness) pursuant to Permitted Foreign Credit Facilities, each to be
provided to a Subsidiary of the Borrower located in a country other than the
U.S. and to be used for ordinary course working capital purposes; provided
that the total Indebtedness incurred pursuant to such foreign credit facilities
(including guarantees of any such Indebtedness) shall not exceed an aggregate
principal amount outstanding at any time of $25,000,000;


 


(ix)   the Obligations; and


 


(x)    other unsecured Indebtedness in an aggregate principal
amount (inclusive of the Obligations of the Subsidiary Borrowers) at any time
outstanding not to exceed 15% of Consolidated Net Worth.


 


6.3          Acquisitions.


 


The Borrower will not, and will not permit
any of its wholly-owned Subsidiaries to, purchase or otherwise acquire (by
merger or otherwise) all or substantially all of the assets of, all of the
Capital Stock of, or a business line or unit or a division of, any Person (any
of the foregoing, an “Acquisition”)
if an Event of Default or Potential Event of Default exists or would result
from such transaction.


 


6.4          Restrictions on
Subsidiary Distributions.


 


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


 


6.5          Restricted Payments.
The Borrower shall not, and shall not permit any Subsidiary to, directly or
indirectly, declare, pay, make or set aside any sum for any Restricted Payment
if an 


 


67





















 


Event of Default or a Potential Event of Default exists or would result
therefrom; provided, however, that Subsidiaries shall in no event be
prohibited from paying, making or setting aside any sum for any Restricted
Payment to the Borrower or any other Subsidiary.


 


6.6          Restriction on
Fundamental Changes; Sales of Assets.


 


Except pursuant to the
Distribution consistent with the terms of this Agreement, the Borrower shall
not, and shall not permit any of its Subsidiaries to, enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease or
sub-lease (as lessor or sub-lessor), exchange, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any portion of its
business, assets or property of any kind whatsoever, whether real, personal or
mixed and whether tangible or intangible, whether now owned or hereafter
acquired except:


 


(i)            so long as no Potential Event of
Default or Event of Default shall have occurred and be continuing, or would
result after giving effect thereto, any Subsidiary of the Borrower may be
merged with or into the Borrower or any wholly-owned Subsidiary of the
Borrower, or be liquidated, wound up or dissolved, or all or any part of its
business, property or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of transactions, to the
Borrower or any wholly-owned Subsidiary of the Borrower; provided that
in the case of such a merger (x) with the Borrower, the Borrower shall be the
continuing or surviving Person and (y) not involving the Borrower, a
wholly-owned Subsidiary shall be the continuing or surviving Person;


 


(ii)           sales or other dispositions of
assets that do not constitute Asset Sales;


 


(iii)          the sale or other disposition of any
property listed on Schedule 6.6;


 


(iv)          sales, leases or other dispositions
of obsolete, worn out or surplus property;


 


(v)           any disposition of accounts
receivable (including chattel paper, instruments and general intangibles) or
notes receivable, the rights related to any of the foregoing and property
related to any of the foregoing in connection with Qualified Receivables
Transactions;


 


(vi)          Acquisitions permitted by Section 6.3;
and


 


(vii)         Asset Sales (excluding any Asset
Sale permitted by any other provision of this Section 6.6) in an aggregate
amount in any Fiscal Year not exceeding 15% of Consolidated Net Worth as of the
last day of the preceding Fiscal Year.


 


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For purposes of clauses (iii) and (vi) above, any
non-Cash proceeds consisting of notes or other debt Securities shall be valued
at the principal amount thereof and any other non-Cash proceeds shall be valued
at fair market value thereof.


 


6.7          [Reserved.].


 


6.8          Conduct of Business.


 


From and after the
Effective Date, the Borrower shall not, and shall not permit any of its
Subsidiaries to, engage in any material business or conduct any activities
other than engaging in the businesses now conducted by the Borrower and its
Subsidiaries and businesses reasonably related thereto.


 


6.9          Accounting Changes;
Fiscal Year.


 


The Borrower shall not
make or permit, nor permit any of its Subsidiaries to make or permit, any
change in the Fiscal Year of the Borrower or any of its Subsidiaries.


 


6.10        Other Indebtedness.


 


The Borrower shall not,
and shall not permit any of its Subsidiaries to, amend or otherwise change the
terms of any Subordinated Indebtedness, or make any optional payment or any
payment pursuant thereto, if the effect of such amendment or change is to
increase the interest rate on such Subordinated Indebtedness, change (to
earlier dates) any dates upon which payments of principal or interest are due
thereon, change any event of default or condition to an event of default with
respect thereto (other than to eliminate any such event of default or increase
any grace period related thereto), change the redemption, prepayment or
defeasance provisions thereof, change the subordination provisions of such
Subordinated Indebtedness (or of any guaranty thereof), or if the effect of
such amendment or change, together with all other amendments or changes made, is
to increase materially the obligations of the obligor thereunder or to confer
any additional rights on the holders of such Subordinated Indebtedness (or a
trustee or other representative on their behalf) which would be adverse to any
Credit Party or the Lenders.


 


6.11        Transactions with
Shareholders and Affiliates.


 


The Borrower shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly, enter
into or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service or the making of any
intercompany loan) with any Affiliate of the Borrower or any of its
Subsidiaries, any holder of Capital Stock or other interests in the Borrower or
any of its Subsidiaries, or any such Affiliate of any such holder, on fair and
reasonable terms that are less favorable to the Borrower or such Subsidiary, as
the case may be, than those that might be obtained at the time in a comparable
arm’s length transaction from a Person who is not such a holder or Affiliate; provided,
the foregoing restriction shall not apply to (a) any transaction between
the Borrower and its Subsidiaries or between such Subsidiaries to the extent
otherwise permitted hereunder; (b) reasonable and customary fees paid to
members of the board of directors (or similar governing body) of the Borrower
and its Subsidiaries; (c) compensation arrangements for officers and other
employees 


 


69





















 


of the Borrower
and its Subsidiaries entered into in the ordinary course of business; (d) any
transaction entered into pursuant to or contemplated by the Separation and
Distribution Agreement; (e) transactions described on Schedule 6.11;
and transactions in connection with Qualified Receivables Transactions
permitted under this Agreement.


 


6.12        [Reserved.].


 


6.13        [Reserved.].


 


6.14        Financial Covenants.


 


A.  Interest Coverage Ratio. 
The Borrower shall not permit the Interest Coverage Ratio as of the last
day of any Fiscal Quarter, for the four Fiscal Quarter period then ended, to be less than 5.00:1.00.


 


B.  Leverage Ratio.  The Borrower shall not permit the Leverage Ratio as of
the last day of any Fiscal Quarter, for the four Fiscal Quarter period then
ended, to exceed 3.00 to 1.00.


 


C.  Minimum Consolidated Net Worth. 
The Borrower shall not at any time permit Consolidated Net
Worth to be less than the sum of (i) $700,000,000 plus (ii) an amount
equal to 50% of Consolidated Net Income (if positive) for each Fiscal Quarter,
commencing with the fiscal quarter ending June 30, 2004.


 


D.  Certain
Calculations.  With respect to any period during which a
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of determining
compliance with the financial covenants set forth in this Section 6.14,
Consolidated Adjusted EBIT and Consolidated Adjusted EBITDA shall be calculated
with respect to such period on a pro forma basis (including pro forma
adjustments arising out of events which are directly attributable to a specific
transaction, are factually supportable and are expected to have a continuing
impact, in each case determined on a basis consistent with Article 11 of
Regulation S-X promulgated under the Securities Act and as interpreted by the
staff of the Securities and Exchange Commission, which would include cost
savings resulting from head count reduction, closure of facilities and similar
restructuring charges, which pro forma adjustments shall be certified by the
chief financial officer of the Borrower) using the historical audited financial
statements of any business so acquired or to be acquired or sold or to be sold
and the consolidated financial statements of the Borrower and its Subsidiaries
which shall be reformulated as if such Subject Transaction, and any Indebtedness
incurred or repaid in connection therewith, had been consummated or incurred or
repaid at the beginning of such period (and assuming that such Indebtedness
bears interest during any portion of the applicable measurement period prior to
the relevant acquisition at the weighted average of the interest rates
applicable to outstanding Loans incurred during such period).


 


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6.15        Interest Rate
Agreements and Currency Agreements.


 


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


 


SECTION 7.         GUARANTY


 


7.1          Guaranty of the
Obligations.


 


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


 


7.2          Payment by the
Borrower.


 


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


 


7.3          Liability of
Guarantor Absolute.


 


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


 


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


 


71





















 


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


 


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


 


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


 


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


 


(f)              this Guaranty and the obligations of the Guarantor
hereunder shall be valid and enforceable and shall not be subject to any
reduction, limitation, impairment, discharge or termination for any reason
(other than payment in full of the Guaranteed Obligations), including the
occurrence of any of the following, whether or not the Guarantor 


 


72





















 


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


 


7.4          Waivers by Guarantor.


 


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


 


73





















 


except behavior
which amounts to bad faith; (e) (i) any principles or provisions of
law, statutory or otherwise, which are or might be in conflict with the terms
hereof and any legal or equitable discharge of the Guarantor’s obligations
hereunder, (ii) the benefit of any statute of limitations affecting the
Guarantor’s liability hereunder or the enforcement hereof, (iii) any
rights to set-offs, recoupments and counterclaims, and (iv) promptness,
diligence and any requirement that any Beneficiary protect, secure, perfect or
insure any security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default hereunder, notices of any renewal, extension or modification of the
Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to any Subsidiary Borrower and notices of any of the
matters referred to in Section 7.2 and any right to consent to any
thereof; and (g) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms hereof.


 


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


 


Until the Guaranteed
Obligations shall have been indefeasibly paid in full and the Revolving
Commitments shall have terminated and all Letters of Credit shall have expired
or been cancelled, the Guarantor hereby waives any claim, right or remedy,
direct or indirect, that the Guarantor now has or may hereafter have against
any Subsidiary Borrower or any of its assets in connection with this Guaranty
or the performance by the Guarantor of its Obligations hereunder, in each case
whether such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise and including without limitation (a) any
right of subrogation, reimbursement or indemnification that the Guarantor now
has or may hereafter have against any Subsidiary Borrower with respect to the
Guaranteed Obligations, (b) any right to enforce, or to participate in,
any claim, right or remedy that any Beneficiary now has or may hereafter have
against any Subsidiary Borrower, and (c) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any
Beneficiary.  In addition, until the
Guaranteed Obligations shall have been indefeasibly paid in full and the
Revolving Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled, the Guarantor shall withhold exercise of any
right of contribution the Guarantor may have against any other guarantor
(including any other Guarantor) of the Guaranteed Obligations.  The Guarantor further agrees that, to the
extent the waiver or agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth
herein is found by a court of competent jurisdiction to be void or voidable for
any reason, any rights of subrogation, reimbursement or indemnification the
Guarantor may have against any Subsidiary Borrower or against any collateral or
security, and any rights of contribution the Guarantor may have against any
such other guarantor, shall be junior and subordinate to any rights any
Beneficiary may have against any Subsidiary Borrower, to all right, title and
interest any Beneficiary may have in any such collateral or security, and to
any right any Beneficiary may have against such other guarantor.  If any amount shall be paid to the Guarantor
on account of any such subrogation, reimbursement, indemnification or
contribution rights at any time when all Guaranteed Obligations shall not have
been finally and indefeasibly paid in full, such amount shall be held in trust
for the Administrative Agent on behalf of the Beneficiaries and shall forthwith
be paid over to the Administrative Agent for the benefit of the Beneficiaries
to be credited and applied against the Guaranteed Obligations, whether matured
or unmatured, in accordance with the terms hereof.


 


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7.6          Subordination of Other
Obligations.


 


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


 


7.7          Continuing Guaranty.


 


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


 


7.8          Authority of Credit Parties.


 


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


 


7.9          Financial Condition of
Credit Parties.


 


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


 


7.10        Bankruptcy, etc.


 


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


 


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


 


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


 


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


 


SECTION 8.         EVENTS OF
DEFAULT


 


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


 


8.1          Failure to Make Payments When Due.


 


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


 


8.2          Default in Other Agreements.


 


Failure of any Credit Party or any of
their respective Subsidiaries to pay when due any principal of or interest on
or any other amount payable in respect of one or more items of Indebtedness
(other than Indebtedness referred to in Section 8.1 above) in excess of
$20,000,000 in the aggregate and in each case beyond the end of any grace
period provided therefor, if any; or (ii) breach or default by any Credit
Party or any of their respective Subsidiaries with respect to any other material
term of (a) one or more items of such Indebtedness or (b) any loan
agreement, mortgage, indenture or other agreement relating to such item(s) of
Indebtedness, in each case beyond the end of any grace period provided
therefor, if any, if the effect of such breach or


 


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default is to cause, or to permit the holder or
holders of that Indebtedness (or a trustee on behalf of such holder or holders)
to cause, that Indebtedness to become or be declared due and payable (or
redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; or


 


8.3          Breach of Certain Covenants.


 


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


 


8.4          Breach of Representation or
Warranty.


 


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


 


8.5          Other Defaults Under Loan
Documents.


 


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


 


8.6          Involuntary Bankruptcy;
Appointment of Receiver, etc.


 


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


 


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8.7          Voluntary Bankruptcy;
Appointment of Receiver, etc.


 


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


 


8.8          Judgments and Attachments.


 


Any money judgment, writ
or warrant of attachment or similar process involving in excess of $20,000,000
(not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
the Borrower or any of its Subsidiaries, or any of their respective assets, and
shall remain undischarged, unvacated, unbonded or unstayed for a period of
sixty (60) days (or in any event later than five (5) days prior to the
date of any proposed sale thereunder); or


 


8.9          Dissolution.


 


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


 


8.10        Employee Benefit Plans.


 


There shall occur one or
more ERISA Events which individually or in the aggregate results in or might
reasonably be expected to result in liability of the Borrower or any of its
Subsidiaries or any of their
respective ERISA Affiliates in excess of $10,000,000 during the term of this
Agreement; or there shall exist any fact or circumstance that reasonably could
be expected to result in the imposition of a Lien or security interest under Section 412(n)
of the Internal Revenue Code or under ERISA; or


 


8.11        Change in Control.


 


A Change of Control shall
occur; or


 


8.12        Repudiation of Obligations.


 


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


 


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


 


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


 


SECTION 9.         MISCELLANEOUS


 


9.1          Assignments and
Participations in Loans and Letters of Credit.


 


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


 


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


 


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


 


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


 


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


 


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surrender its applicable Revolving Notes to
Administrative Agent for cancellation, and thereupon the Credit Parties shall
issue and deliver new Revolving Notes, if so requested by the assignee and/or
assigning Lender, to such assignee and/or to such assigning Lender, with
appropriate insertions, to reflect the new Revolving Commitments and/or
outstanding Revolving Loans of the assignee and/or the assigning Lender.


 


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


 


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


 


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9.2          Expenses.


 


Whether or not the
transactions contemplated hereby shall be consummated, the Credit Parties agree
to pay promptly (i) all the actual and reasonable costs and out-of-pocket
expenses of preparation of the Loan Documents; (ii) all the costs of
furnishing all opinions by counsel for the Credit Parties; (iii) the
reasonable fees, out-of-pocket expenses and disbursements of a single U.S.
counsel, a special Canada counsel and a special Ireland counsel to the Lead
Arrangers and the Agents in connection with the negotiation, preparation and
execution of the Loan Documents and any other documents or matters requested by
the Credit Parties; (iv) all the actual and reasonable costs and
out-of-pocket reasonable fees, expenses and disbursements of any auditors,
accountants, consultants or appraisers; (v) all other actual and
reasonable costs and out-of-pocket expenses incurred by each Lead Arranger, the
Administrative Agent and each Syndication Agent in connection with the
syndication of the Loans and the negotiation, preparation and execution of the
Loan Documents and the transactions contemplated thereby; (vi) all actual
and reasonable costs and out-of-pocket expenses incurred by the Administrative
Agent in connection with any consents, amendments, waivers or other
modifications of the Loan Documents (including the reasonable fees,
out-of-pocket expenses and disbursements of counsel to the Administrative Agent
in connection therewith) and, (vii) after the occurrence of an Event of
Default, all costs and expenses, including reasonable attorneys’ fees
(including, without duplication, allocated costs of internal counsel) and costs
of settlement, incurred by any Agent or Lender in enforcing any Obligations of
or in collecting any payments due from the Credit Parties hereunder or under
the other Loan Documents by reason of such Event of Default (including in
connection with the sale of, collection from, or other realization upon any
collateral) or in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement in the nature of a “work-out”
or pursuant to any insolvency or bankruptcy cases or proceedings.


 


9.3          Indemnity.


 


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


 


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laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby
(including the Lenders’ agreements to make the Credit Extensions hereunder or
the use or intended use of the proceeds thereof, or any enforcement of any of
the Loan Documents (including the enforcement of the Guaranty)).


 


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


 


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


 


9.4          Exception for Subsidiary
Borrowers.


 


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


 


9.5          Set-Off.


 


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


 


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and any of their respective affiliates, as the case may be, to or
for the credit or the account of any Credit Party against and on account of the
obligations and liabilities of any Credit Party to such Agent or such Lender
under this Agreement and the other Loan Documents, including all claims of any
nature or description arising out of or connected with this Agreement or any
other Loan Document, irrespective of whether or not (i) such Agent or such
Lender shall have made any demand hereunder or (ii) the principal of or
the interest on the Loans or any other amounts due hereunder shall have become
due and payable pursuant to Section 9 and although said Obligations, or
any of them, may be contingent or unmatured.


 


9.6          Amendments and Waivers.


 


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


 


9.7          Independence of Covenants.


 


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


 


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9.8          Notices.


 


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


 


B.            Intralinks.


 


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


 


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


 


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


 


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


 


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


 


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


 


9.9          Survival of Representations,
Warranties and Agreements.


 


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


 


B.            Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements of the Credit
Parties set forth in Sections 2.8, 2.9C, 9.2, 9.3 and 9.5 and the agreements of
Lenders set forth in Sections 9.19, 10.2C and 10.4 shall survive the payment of
the Revolving Loans and the termination of this Agreement.


 


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9.10        Failure or Indulgence Not
Waiver; Remedies Cumulative.


 


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


 


9.11        Marshalling; Payments Set Aside.


 


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


 


9.12        Severability.


 


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


 


9.13        Headings.


 


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


 


9.14        Applicable Law.


 


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


 


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9.15        Successors and Assigns.


 


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


 


9.16        Consent to Jurisdiction and
Service of Process.


 


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


 


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


 


(II)           WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS;


 


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


 


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


 


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


 


(VI)         AGREES
THAT THE PROVISIONS OF THIS SECTION 9.16 RELATING TO JURISDICTION AND
VENUE SHALL BE BINDING AND


 


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ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE
UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.


 


9.17        Waiver of Jury Trial.


 


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


 


9.18        Confidentiality.


 


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


 


89





















 


representative
thereof; provided that unless specifically prohibited by applicable law,
court order or similar regulatory process, each Agent and Lender shall make
reasonable efforts to notify the Credit Parties of any request by any
Governmental Authority or representative thereof (other than any such request
in connection with any examination of the financial condition or other routine
examination of such Agent or Lender by such Governmental Authority) for
disclosure of any such non-public information prior to disclosure of such
information; (v) to any other party hereto; (vi) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder; (vii) to any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Credit Parties and their Obligations; (viii) with
the consent of the applicable Credit Party or (ix) to the extent such
information (x) becomes publicly available other than as a result of a breach
of this Section 9.18 or (y) becomes available to any Agent, any Lender or
their respective Affiliates on a nonconfidential basis from a source other than
the Credit Parties so long as such Agent, such Lender or such Affiliate does
not have knowledge that such source has an obligation to any Credit Party to
keep such information confidential; provided, that in no event shall any
Agent or Lender be obligated or required to return any materials furnished by
any Credit Party or any of its Subsidiaries. 
Notwithstanding anything to the contrary set forth herein, each party
(and each of their respective employees, representatives or other agents) may
disclose to any and all persons, without limitations of any kind, the tax
treatment and tax structure of the transactions contemplated by this Agreement
and all materials of any kind (including opinions and other tax analyses) that
are provided to any such party relating to such tax treatment and tax
structure. However, any information relating to the tax treatment or tax
structure shall remain subject to the confidentiality provisions hereof (and
the foregoing sentence shall not apply) to the extent reasonably necessary to
enable the parties hereto, their respective Affiliates, and their and their
respective Affiliates’ directors and employees to comply with applicable
securities laws. For this purpose, “tax structure” means any facts relevant to
the federal income tax treatment of the transactions contemplated by this
Agreement but does not include information relating to the identity of any of
the parties hereto or any of their respective Affiliates.


 


9.19        Ratable Sharing.


 


The Lenders hereby agree
among themselves that if any of them shall, whether by voluntary payment (other
than a voluntary prepayment of Revolving Loans made and applied in accordance
with the terms hereof), through the exercise of any right of set-off or banker’s
lien, by counterclaim or cross action or by the enforcement of any right under
the Loan Documents or otherwise, or as adequate protection of a deposit treated
as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of facility fees or commitment fees and other amounts then due and
owing to such Lender hereunder or under the other Loan Documents (collectively,
the “Aggregate Amounts Due” to
such Lender), which is greater than the proportion received by any other Lender
in respect to of the Aggregate Amounts Due to such other Lender, then the
Lender receiving such proportionately greater payment shall (i) notify the
Administrative Agent of the receipt of such payment and (ii) apply a
portion of such payment to purchase (for cash at face value) participations
(which it shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment),
or such other adjustments as shall be equitable, in the Aggregate Amounts Due
to the other Lenders


 


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so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in
proportion to the Aggregate Amounts Due to them; provided that, if all
or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of any Credit Party or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest.  The Credit Parties and
each of their Subsidiaries expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker’s lien, set-off or counterclaim with respect to any and all
monies owing by the Credit Parties or any of their Subsidiaries to that holder
with respect thereto as fully as if that holder were owed the amount of the
participation held by that holder.


 


9.20        Counterparts; Effectiveness.


 


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


 


9.21        Obligations Several;
Independent Nature of Lenders’ Rights.


 


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


 


9.22        Usury Savings Clause.


 


Notwithstanding any other
provision herein, the aggregate interest rate charged with respect to any of
the Obligations, including all charges or fees in connection therewith deemed
in the nature of interest under applicable law shall not exceed the Highest
Lawful Rate.  As used herein, “Highest Lawful Rate” means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.  If the rate of interest (determined without
regard to the preceding sentence) under this Agreement at any time exceeds the
Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall
bear interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect.  In addition, if when the
Loans made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been


 


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in effect, then to
the extent permitted by law, the Credit Parties shall pay to the Administrative
Agent an amount equal to the difference between the amount of interest paid and
the amount of interest which would have been paid if the Highest Lawful Rate
had at all times been in effect. 
Notwithstanding the foregoing, it is the intention of the Lenders and
the Credit Parties to conform strictly to any applicable usury laws.  Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender’s option be applied to the
outstanding amount of the Revolving Loans made hereunder or be refunded to the
Credit Parties.


 


9.23        Judgment Currency.


 


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


 


SECTION 10.       AGENTS


 


10.1        Appointment.


 


ABN AMRO Bank and MSSF
are hereby appointed as Syndication Agents hereunder, and each Lender hereby
authorizes the Syndication Agents to act as its agents in accordance with the
terms of this Agreement and the other Loan Documents.  Bank One, NA and Bank of America, N.A. are
hereby appointed as Documentation Agents hereunder, and each Lender hereby
authorizes the Documentation Agents to act as its agents in accordance with the
terms of this Agreement and the other Loan Documents.  Citicorp is hereby appointed by each Lender
as the Administrative Agent hereunder and under the other Loan Documents and
each Lender hereby authorizes the Administrative Agent to act as its agent in
accordance with the terms of this Agreement and the other Loan Documents.  Each Agent hereby agrees to act upon the
express conditions contained in this Agreement and the other Loan Documents, as
applicable.  The provisions of this Section 10
are solely for the benefit of the Agents and the Lenders, and the Credit
Parties shall have no rights as a third party beneficiary of any of the
provisions thereof.  In performing its
functions and duties under this Agreement, each of the Agents shall act solely
as


 


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an agent of the
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for any Credit Party
or any of their respective Subsidiaries.


 


10.2        Powers and Duties; General
Immunity.


 


A.            Powers; Duties
Specified.  Each Lender irrevocably authorizes each Agent
to take such action on such Lender’s behalf and to exercise such powers, rights
and remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental
thereto.  Each Agent shall have only
those duties and responsibilities that are expressly specified in this
Agreement and the other Loan Documents. 
Each Agent may exercise such powers, rights and remedies and perform
such duties by or through its agents or employees.  No Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon any Agent any obligations in respect of this Agreement or any of
the other Loan Documents except as expressly set forth herein or therein.  Anything herein to the contrary
notwithstanding, none of the Lead Arrangers or Documentation Agents listed on
the cover page hereof shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as a Lender or the Issuing Bank hereunder.


 


B.            No Responsibility
for Certain Matters.  No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Agreement or
any other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by any Agent to the Lenders or by or on
behalf of the Credit Parties to any Agent or any Lender in connection with the
Loan Documents and the transactions contemplated thereby or for the financial
condition or business affairs of the Credit Parties or any other Person liable
for the payment of any Obligations, nor shall any Agent be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents (other than to confirm receipt of items required under this Agreement
or any Loan Document to be delivered to such Agent) or as to the use of the
proceeds of the Loans or as to the existence or possible existence of any Event
of Default or Potential Event of Default (unless and until notice describing
such Event of Default or Potential Event of Default is given to such Agent by a
Credit Party or any other Agent) or to make disclosures with respect to the
foregoing.  Anything contained in this
Agreement to the contrary notwithstanding, the Administrative Agent shall not
have any liability arising from confirmations of the amount of outstanding
Revolving Loans or the component amounts thereof.


 


C.            Exculpatory
Provisions.  No Agent nor any of its officers, partners,
directors, employees or agents shall be liable to the Lenders for any action taken
or omitted by any Agent under or in connection with any of the Loan Documents
except to the extent caused by such Agent’s gross negligence or willful
misconduct.  Each Agent shall be entitled
to refrain from any act or the taking of any action (including the failure to
take an action) in connection with this


 


93





















 


Agreement or any of the other Loan Documents or from
the exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in
respect thereof from the Requisite Lenders (or such other the Lenders as may be
required to give such instructions under Section 9.6) and, upon receipt of
such instructions from the Requisite Lenders (or such other Lenders, as the
case may be), such Agent shall be entitled to act or (where so instructed)
refrain from acting, or to exercise such power, discretion or authority, in
accordance with such instructions. 
Without prejudice to the generality of the foregoing, (i) each of
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper Person or Persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for the Credit Parties and their
Subsidiaries), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against
any Agent as a result of such Agent acting or (where so instructed) refraining
from acting under this Agreement or any of the other Loan Documents in
accordance with the instructions of the Requisite Lenders (or such other
Lenders as may be required to give such instructions under Section 9.6).


 


D.            Agents Entitled to
Act as Lenders.  The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or obligations
upon, any Agent in its individual capacity as a Lender hereunder.  With respect to its participation in the
Revolving Loans and the Letters of Credit, each Agent shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity.  Any Agent and its Affiliates may accept
deposits from, lend money to, own Securities of, and generally engage in any
kind of banking, trust, financial advisory or other business with the Credit
Parties or any of their Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from the Credit
Parties for services in connection with this Agreement and otherwise without
having to account for the same to Lenders.


 


10.3        Representations and
Warranties; No Responsibility For Appraisal of Creditworthiness.


 


Each Lender represents
and warrants that it has made its own independent investigation of the
financial condition and affairs of the Credit Parties and their Subsidiaries in
connection with the making of the Loans hereunder and that it has made and
shall continue to make its own appraisal of the creditworthiness of the Credit
Parties and their Subsidiaries.  No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of the
Lenders or to provide any Lender with any credit or other information with
respect thereto, whether coming into its possession before the making of the
Revolving Loans or at any time or times thereafter, and no Agent shall have any
responsibility with respect to the accuracy of or the completeness of any
information provided to the Lenders.


 


94










 













 


10.4                        Right to Indemnity.


 


Each Lender, in
proportion to its Pro Rata Share, severally agrees to indemnify each Agent, to
the extent that such Agent shall not have been reimbursed by the Credit Parties
to the full extent required by this Agreement or any other Loan Document, for
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Agent in exercising its
powers, rights and remedies or performing its duties hereunder or under the
other Loan Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Loan Documents; provided
(a) that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent’s gross negligence or
willful misconduct and (b) no Lender shall be liable for the payment of
any portion of an Indemnified Liability pursuant to this Section 10.4
unless such Indemnified Liability was incurred by such Agent in its capacity as
such or by another Person acting for such Agent in such capacity.  If any indemnity furnished to any Agent for
any purpose shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.


 


10.5                        Successor Administrative Agent.


 


The Administrative Agent
may resign at any time by giving thirty (30) days’ prior written notice thereof
to the Lenders and the Credit Parties, and the Administrative Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to the Credit Parties and the Administrative
Agent and signed by the Requisite Lenders. 
Upon any such notice of resignation or any such removal, the Requisite
Lenders shall have the right, with, so long as no Potential Event of Default or
Event of Default exists, the consent of the Borrower (which consent shall not
be unreasonably withheld or delayed), upon five (5) Business Days’ notice
to the Credit Parties, to select a successor Administrative Agent.  Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent and the retiring or removed Administrative Agent shall be
discharged from its duties and obligations under this Agreement.  After any retiring or removed Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the
provisions of this Section 10 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent under
this Agreement.


 


10.6                        Agents Under Guaranty.


 


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


 


95





















 


 


10.7                        Acknowledgment of Potential
Related Transactions.


 


The Credit Parties hereby
acknowledge their understanding that each of the Lead Arrangers, each of the Agents and each of the
Lenders may from time to time effect transactions (for its own account or the
account of customers), and hold positions in loans or options on loans that may
be the subject of this arrangement.  In
addition, certain Affiliates of the Lenders are full service securities firms
and as such may from time to time effect transactions (for its own account or
the account of customers), and hold positions, in loans or options on loans or
securities or options on securities that may be the subject of this
arrangement.  In addition, each of the
Lead Arrangers, each of the Agents
and each of the Lenders may employ the services of its Affiliates in providing
certain services hereunder and may, subject to Section 9.18, exchange with
such Affiliates information concerning the Credit Parties and other companies
that may be the subject of this arrangement.


 


SECTION 11.                     JOINDER OF SUBSIDIARY BORROWERS


 


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


 


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


 


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


 


(i)             an originally executed Revolving Loan Note or
Revolving Loan Notes substantially in the form of Annex A to the Joinder
Agreement to evidence such Lender’s Revolving Loans to such Subsidiary
Borrower;


 


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


 


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


 


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


 


(v)         a good standing certificate or certificate of
existence, as applicable, from the Secretary of State (or similar official)
from the jurisdiction of formation of such Subsidiary Borrower, certified as of
the Effective Date (or a recent date prior to the Effective Date) (the


 


96





















 


matters referenced in subsections 11B(ii)-(v) to
be addressed in a secretary’s certificate substantially in the form of Exhibit VIII);


 


(vi)           an officer’s certificate from an officer of such
Subsidiary Borrower substantially in the form of Exhibit IX, in
form and substance satisfactory to the Administrative Agent, to the effect that
all representations and warranties contained in this Agreement and the other
Loan Documents are true, correct and complete; that the Borrower and its
Subsidiaries are not in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that no event shall have occurred and
be continuing or would result from the consummation of the transactions
contemplated by this Agreement, that would constitute an Event of Default or a
Potential Event of Default; and that such Subsidiary Borrower has satisfied
each of the conditions to effectiveness set forth in this Section 11; and


 


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


 


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


 


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


 


E.                                      Authorizations and
Consents.


 


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


 


(ii)          Each of the Lenders shall have received, at least two (2) Business
Days in advance of the Effective Date, all documentation and other information
required by Governmental Authorities under applicable “know-your-customer” and
anti-money laundering rules and regulations, including as required by the
Uniting and Strengthening America by


 


97





















 


Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.


 


F.                                      Solvency
Assurances.  The Administrative
Agent shall have received a Financial Condition Certificate from the chief
financial officer of the Subsidiary Borrower requesting such Alternative
Currency Loan, dated the Joinder Date, substantially in the form of Exhibit V
annexed hereto and satisfactory to the Administrative Agent, and with
appropriate attachments demonstrating that, before and after giving effect to
the transactions contemplated by the Loan Documents, such Subsidiary Borrower
and its Subsidiaries will be Solvent.


 


[Remainder
of page intentionally left blank]


 


98





















 


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


 


	
   

  	
  HOSPIRA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  275 N. Field Road

  
	
   

  	
  Lake Forest, Il 60064

  
	
   

  	
  Attention:                                    

  
	
   

  	
  Tel: (847)
                   -                 

  
	
   

  	
  Fax: (847)
                   -                 

  
	
   

  	
  email:

  



 





















 


	
   

  	
  CITICORP NORTH AMERICA, INC.,

  
	
   

  	
  as Lender and Administrative
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  390 Greenwich Street

  
	
   

  	
  New York, NY 10013

  
	
   

  	
  Attention: William E. Clark

  
	
   

  	
  Tel: (212) 816-8183

  
	
   

  	
  Fax: (212) 816-8051

  
	
   

  	
  email: william.e.clark@citigroup.com

  



 





















 


	
   

  	
  CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Bookrunner and Joint Lead Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  390 Greenwich Street

  
	
   

  	
  New York, NY 10013

  
	
   

  	
  Attention: William E. Clark

  
	
   

  	
  Tel: (212) 816-8183

  
	
   

  	
  Fax: (212) 816-8051

  
	
   

  	
  email: william.e.clark@citigroup.com

  



 





















 


	
   

  	
  ABN AMRO INCORPORATED,

  as Joint Lead Bookrunner and Joint Lead Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  c/o ABN AMRO Bank N.V.

  
	
   

  	
  208 South LaSalle Street, Suite 1500

  
	
   

  	
  Chicago, IL 60604-1003

  
	
   

  	
  Attention: Loan Administration

  
	
   

  	
  Tel: (312) 992-5250

  
	
   

  	
  Fax: (312) 992-5155

  
	
   

  	
  email:

  



 





















 


	
   

  	
  ABN AMRO BANK N.V., as Lender and Joint

  Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  208 South LaSalle Street, Suite 1500

  
	
   

  	
  Chicago, IL 60604-1003

  
	
   

  	
  Attention: Loan Administration

  
	
   

  	
  Tel: (312) 992-5250

  
	
   

  	
  Fax: (312) 992-5155

  
	
   

  	
  email:

  



 





















 


	
   

  	
  MORGAN STANLEY SENIOR FUNDING, INC., as

  Joint Lead Bookrunner, Joint Lead Arranger and Joint

  Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  1633 Broadway, 25th Floor

  
	
   

  	
  New York, NY 10019

  
	
   

  	
  Attention: James Morgan/Larry Benison

  
	
   

  	
  Tel: (212) 537-1470 / (212) 537-1439

  
	
   

  	
  Fax: (212) 537-1867 / 1866

  
	
   

  	
  email:

  



 





















 


	
   

  	
  MORGAN STANLEY BANK, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  1633 Broadway, 25th Floor

  
	
   

  	
  New York, NY 10019

  
	
   

  	
  Attention: James Morgan/Larry Benison

  
	
   

  	
  Tel: 
  (212) 537-1470 / (212) 537-1439

  
	
   

  	
  Fax: (212) 537-1867 / 1866

  
	
   

  	
  email:

  



 





















 


	
   

  	
  BANK ONE, NA, as
  Lender and Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Diane Faunda

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  1 Bank One Plaza, Mail Code IL 1-0010

  
	
   

  	
  Chicago, IL 60670

  
	
   

  	
  Attention: William Laird

  
	
   

  	
  Tel: 
  (312) 385-7045

  
	
   

  	
  Fax: 
  (312) 385-7098

  
	
   

  	
  email: william_laird@bankone.com

  
					



 





















 


	
   

  	
  BANK OF AMERICA, N.A.,
  as Lender and Co-

  Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  1850 Gateway Blvd.

  
	
   

  	
  Concord, CA 94520-3282

  
	
   

  	
  Attention: Pamela S. Greer-Tillman

  
	
   

  	
  Tel: (925) 675-8453

  
	
   

  	
  Fax: (888) 969-2786

  
	
   

  	
  email:

  



 





















 


	
   

  	
  BANK OF MONTREAL,
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: Joseph W. Linder

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  115 South LaSalle Street, 12 West

  
	
   

  	
  Chicago, IL 60603

  
	
   

  	
  Attention: Joseph W. Linder

  
	
   

  	
  Tel: (312) 750-3784

  
	
   

  	
  Fax: (312) 750-6057

  
	
   

  	
  email: joseph.linder@bmo.com

  



 





















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI, LTD.,

  CHICAGO BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  The Bank of Tokyo-Mitsubishi, Ltd.

  
	
   

  	
  Chicago Branch

  
	
   

  	
  227 W. Monroe St., Suite 2300

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
  Attention: Corporate Banking—Ms. Diane
  Tkach

  
	
   

  	
  Tel: (312) 696-4663

  
	
   

  	
  Fax: (312) 696-4535

  
	
   

  	
  email: dtkach@btmna.com

  



 





















 


	
   

  	
  BNP PARIBAS, as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  919 Third Avenue

  
	
   

  	
  3rd Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
  Attention: Gabriel Candamo

  
	
   

  	
  Tel: 
  (212) 471-6626

  
	
   

  	
  Fax: 
  (212) 471-6695

  
	
   

  	
  email:

  



 





















 


	
   

  	
  COMMERZBANK AG, NEW YORK AND GRAND

  CAYMAN BRANCHES, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  20 South Clark Street

  
	
   

  	
  Suite 2700

  
	
   

  	
  Chicago, Il 60603

  
	
   

  	
  Attention: John Marlatt

  
	
   

  	
  Tel: 
  (312) 795-1625

  
	
   

  	
  Fax: 
  (312) 236-2827

  
	
   

  	
  email: jmarlatt@cbkna.com

  



 





















 


	
   

  	
  SUNTRUST BANK, as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  200 South Orange Avenue, MC 1108

  
	
   

  	
  Orlando, FL 32801

  
	
   

  	
  Attention: Arnette Delaine

  
	
   

  	
  Tel: 
  (407) 237-2436

  
	
   

  	
  Fax: 
  (407) 237-5342

  
	
   

  	
  email:

  



 





















 


	
   

  	
  WACHOVIA BANK, N.A.,
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  201 South College Street CP9, NC 1183

  
	
   

  	
  Charlotte, NC 28288

  
	
   

  	
  Attention: Dianne Taylor

  
	
   

  	
  Tel: 
  (704) 715-1876

  
	
   

  	
  Fax: 
  (704) 715-0094

  
	
   

  	
  email:

  



 





















 


	
   

  	
  THE NORTHERN TRUST COMPANY,
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  50 South LaSalle Street

  
	
   

  	
  Chicago, IL 60675

  
	
   

  	
  Attention: Linda Honda

  
	
   

  	
  Tel: 
  (312) 444-3532

  
	
   

  	
  Fax: 
  (312) 630-1566

  
	
   

  	
  email: