**Exhibit 10.2**

 

**$100,000,000**

**CREDITAGREEMENT**

**dated asof September 18, 2006,**

**among**

**SCIELEPHARMA, INC.,as the US Borrower,**

**SCIELEPHARMA CAYMAN LTD.,as the Cayman Borrower**

**THE OTHERGUARANTORS PARTY HERETO,as Guarantors,**

**THELENDERS PARTY HERETO**

**and**

**UBSSECURITIES LLC,as Joint Lead Arranger and Bookmanager,**

**LASALLEBANK NATIONAL ASSOCIATION,as Joint Lead Arranger and Syndication Agent**

**and**

**UBS AG,STAMFORD BRANCH,as Issuing Bank, Administrative Agent and Collateral Agent,**

**REGIONSBANK, FIFTH THIRD BANK, andBANK OF AMERICA, N.A. as Co-Documentation Agents**

**and**

**UBS LOANFINANCE LLC,as Swingline Lender**

**Latham& Watkins LLP885 Third Avenue, Suite 1000New York, NY 10022-4834**

 

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**TABLE OF CONTENTS**
| Section       | ** ** | ** **                                                  | ** ** | ** ** | ** ** | ** ** | ** ** |
|---------------|------------|-------------------------------------------------------------|------------|------------|------------|------------|------------|
|          |       |                                                        |       |       |       |
|          |       | ARTICLE I                                                   |       |       |       |
|          |       |                                                        |       |       |       |
|          |       | DEFINITIONS                                                 |       |       |       |
|          |       |                                                        |       |       |       |
| SECTION  1.01 |       | Defined Terms                                               |       | 1          |       |
| SECTION  1.02 |       | Classification of Loans  and Borrowings                     |       | 33         |       |
| SECTION  1.03 |       | Terms Generally                                             |       | 34         |       |
| SECTION  1.04 |       | Accounting Terms; GAAP                                      |       | 34         |       |
| SECTION  1.05 |       | Resolution of Drafting  Ambiguities                         |       | 34         |       |
|          |       |                                                        |       |       |       |
|          |       | ARTICLE II                                                  |       |       |       |
|          |       |                                                        |       |       |       |
|          |       | THE CREDITS                                                 |       |       |       |
|          |       |                                                        |       |       |       |
| SECTION  2.01 |       | Commitments                                                 |       | 34         |       |
| SECTION  2.02 |       | Loans                                                       |       | 35         |       |
| SECTION  2.03 |       | Borrowing Procedure                                         |       | 36         |       |
| SECTION  2.04 |       | Evidence of Debt;  Repayment of Loans                       |       | 37         |       |
| SECTION  2.05 |       | Fees                                                        |       | 38         |       |
| SECTION  2.06 |       | Interest on Loans                                           |       | 39         |       |
| SECTION  2.07 |       | Termination and  Reduction of Commitments                   |       | 40         |       |
| SECTION  2.08 |       | Interest Elections                                          |       | 40         |       |
| SECTION  2.09 |       | [Intentionally Deleted]                                     |       | 41         |       |
| SECTION  2.10 |       | Optional and Mandatory  Prepayments of Loans                |       | 41         |       |
| SECTION  2.11 |       | Alternate Rate of  Interest                                 |       | 43         |       |
| SECTION  2.12 |       | Yield Protection                                            |       | 44         |       |
| SECTION  2.13 |       | Breakage Payments                                           |       | 45         |       |
| SECTION  2.14 |       | Payments Generally; Pro  Rata Treatment; Sharing of Setoffs |       | 45         |       |
| SECTION  2.15 |       | Taxes                                                       |       | 47         |       |
| SECTION  2.16 |       | Mitigation Obligations;  Replacement of Lenders             |       | 49         |       |
| SECTION  2.17 |       | Swingline Loans                                             |       | 50         |       |
| SECTION  2.18 |       | Letters of Credit                                           |       | 53         |       |
| SECTION  2.19 |       | Increase in Commitments                                     |       | 64         |       |
|          |       |                                                        |       |       |       |
|          |       | ARTICLE III                                                 |       |       |       |
|          |       |                                                        |       |       |       |
|          |       | REPRESENTATIONS  AND WARRANTIES                             |       |       |       |
|          |       |                                                        |       |       |       |
| SECTION  3.01 |       | Organization; Powers                                        |       | 66         |       |
| SECTION  3.02 |       | Authorization;  Enforceability                              |       | 66         |       |
| SECTION  3.03 |       | No Conflicts                                                |       | 66         |       |
| SECTION  3.04 |       | Financial Statements;  Projections                          |       | 66         |       |
| SECTION  3.05 |       | Properties                                                  |       | 67         |       |
| SECTION  3.06 |       | Intellectual Property                                       |       | 68         |       |
| SECTION 3.07  |       | Equity Interests and Subsidiaries                           |       | 68         |       |

 

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| Section       | ** ** | ** **                                                                  | ** ** | ** ** | ** ** | ** ** | ** ** |
|---------------|------------|-----------------------------------------------------------------------------|------------|------------|------------|------------|------------|
|          |       |                                                                        |       |       |       |
| SECTION  3.08 |       | Litigation; Compliance  with Laws                                           |       | 69         |       |
| SECTION  3.09 |       | Agreements                                                                  |       | 69         |       |
| SECTION  3.10 |       | Federal Reserve  Regulations                                                |       | 69         |       |
| SECTION  3.11 |       | Investment Company Act                                                      |       | 70         |       |
| SECTION  3.12 |       | Use of Proceeds                                                             |       | 70         |       |
| SECTION  3.13 |       | Taxes                                                                       |       | 70         |       |
| SECTION  3.14 |       | No Material  Misstatements                                                  |       | 70         |       |
| SECTION  3.15 |       | Labor Matters                                                               |       | 70         |       |
| SECTION  3.16 |       | Solvency                                                                    |       | 71         |       |
| SECTION  3.17 |       | Employee Benefit Plans                                                      |       | 71         |       |
| SECTION  3.18 |       | Environmental Matters                                                       |       | 71         |       |
| SECTION  3.19 |       | Insurance                                                                   |       | 73         |       |
| SECTION  3.20 |       | Security Documents                                                          |       | 73         |       |
| SECTION  3.21 |       | Anti-Terrorism Law                                                          |       | 74         |       |
| SECTION  3.22 |       | Convertible Bond  Documents                                                 |       | 75         |       |
| SECTION  3.23 |       | Foreign Subsidiaries                                                        |       | 75         |       |
|          |       |                                                                        |       |       |       |
|          |       | ARTICLE IV                                                                  |       |       |       |
|          |       |                                                                        |       |       |       |
|          |       | CONDITIONS TO  CREDIT EXTENSIONS                                            |       |       |       |
|          |       |                                                                        |       |       |       |
| SECTION  4.01 |       | Conditions to Initial  Credit Extension                                     |       | 76         |       |
| SECTION  4.02 |       | Conditions to All  Credit Extensions                                        |       | 79         |       |
|          |       |                                                                        |       |       |       |
|          |       | ARTICLE V                                                                   |       |       |       |
|          |       |                                                                        |       |       |       |
|          |       | AFFIRMATIVE  COVENANTS                                                      |       |       |       |
|          |       |                                                                        |       |       |       |
| SECTION  5.01 |       | Financial Statements,  Reports, etc.                                        |       | 80         |       |
| SECTION  5.02 |       | Litigation and Other  Notices                                               |       | 82         |       |
| SECTION  5.03 |       | Existence; Businesses  and Properties                                       |       | 83         |       |
| SECTION  5.04 |       | Insurance                                                                   |       | 83         |       |
| SECTION  5.05 |       | Obligations and Taxes                                                       |       | 84         |       |
| SECTION  5.06 |       | Employee Benefits                                                           |       | 85         |       |
| SECTION  5.07 |       | Maintaining Records;  Access to Properties and Inspections; Annual Meetings |       | 85         |       |
| SECTION  5.08 |       | Use of Proceeds                                                             |       | 86         |       |
| SECTION  5.09 |       | Compliance with  Environmental Laws; Environmental Reports                  |       | 86         |       |
| SECTION  5.10 |       | Accounts                                                                    |       | 86         |       |
| SECTION  5.11 |       | Additional Collateral;  Additional Guarantors                               |       | 86         |       |
| SECTION  5.12 |       | Security Interests;  Further Assurances                                     |       | 88         |       |
| SECTION  5.13 |       | Information Regarding  Collateral                                           |       | 88         |       |
| SECTION  5.14 |       | Affirmative Covenants  with Respect to Leases                               |       | 89         |       |
| SECTION 5.15  |       | Post-Closing Collateral Matters                                             |       | 89         |       |

 

ii

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| Section       | ** ** | ** **                                                                                               | ** ** | ** ** | ** ** | ** ** | ** ** |
|---------------|------------|----------------------------------------------------------------------------------------------------------|------------|------------|------------|------------|------------|
|          |       |                                                                                                     |       |       |       |
|          |       | ARTICLE VI                                                                                               |       |       |       |
|          |       |                                                                                                     |       |       |       |
|          |       | NEGATIVE  COVENANTS                                                                                      |       |       |       |
|          |       |                                                                                                     |       |       |       |
| SECTION  6.01 |       | Indebtedness                                                                                             |       | 89         |       |
| SECTION  6.02 |       | Liens                                                                                                    |       | 90         |       |
| SECTION  6.03 |       | Sale and Leaseback  Transactions                                                                         |       | 93         |       |
| SECTION  6.04 |       | Investment, Loan and  Advances                                                                           |       | 93         |       |
| SECTION  6.05 |       | Mergers and  Consolidations                                                                              |       | 94         |       |
| SECTION  6.06 |       | Asset Sales                                                                                              |       | 94         |       |
| SECTION  6.07 |       | Acquisitions and  Licenses                                                                               |       | 95         |       |
| SECTION  6.08 |       | Dividends                                                                                                |       | 96         |       |
| SECTION  6.09 |       | Transactions with  Affiliates                                                                            |       | 96         |       |
| SECTION  6.10 |       | Financial Covenants                                                                                      |       | 97         |       |
| SECTION  6.11 |       | Prepayments of Other  Indebtedness; Modifications of Organizational Documents and Other Documents,  etc. |       | 97         |       |
| SECTION  6.12 |       | Limitation on Certain  Restrictions on Subsidiaries                                                      |       | 98         |       |
| SECTION  6.13 |       | Limitation on Issuance  of Capital Stock                                                                 |       | 98         |       |
| SECTION  6.14 |       | Limitation on Creation  of Subsidiaries                                                                  |       | 99         |       |
| SECTION  6.15 |       | Business                                                                                                 |       | 99         |       |
| SECTION  6.16 |       | Limitation on  Accounting Changes                                                                        |       | 99         |       |
| SECTION  6.17 |       | Fiscal Year                                                                                              |       | 99         |       |
| SECTION  6.18 |       | Lease Obligations                                                                                        |       | 99         |       |
| SECTION  6.19 |       | No Further Negative  Pledge                                                                              |       | 99         |       |
| SECTION  6.20 |       | Anti-Terrorism Law;  Anti-Money Laundering                                                               |       | 100        |       |
| SECTION  6.21 |       | Embargoed Person                                                                                         |       | 100        |       |
| SECTION  6.22 |       | Convertible Bond  Indenture                                                                              |       | 100        |       |
| SECTION  6.23 |       | Foreign Subsidiaries                                                                                     |       | 101        |       |
|          |       |                                                                                                     |       |       |       |
|          |       | ARTICLE VII                                                                                              |       |       |       |
|          |       |                                                                                                     |       |       |       |
|          |       | GUARANTEE                                                                                                |       |       |       |
|          |       |                                                                                                     |       |       |       |
| SECTION  7.01 |       | The Guarantees                                                                                           |       | 101        |       |
| SECTION  7.02 |       | Obligations  Unconditional                                                                               |       | 102        |       |
| SECTION  7.03 |       | Reinstatement                                                                                            |       | 103        |       |
| SECTION  7.04 |       | Subrogation;  Subordination                                                                              |       | 103        |       |
| SECTION  7.05 |       | Remedies                                                                                                 |       | 104        |       |
| SECTION  7.06 |       | Instrument for the  Payment of Money                                                                     |       | 104        |       |
| SECTION  7.07 |       | Continuing Guarantee                                                                                     |       | 105        |       |
| SECTION  7.08 |       | General Limitation on  Guarantee Obligations                                                             |       | 105        |       |
| SECTION  7.09 |       | Release of Guarantors                                                                                    |       | 105        |       |
|          |       |                                                                                                     |       |       |       |
|          |       | ARTICLE VIII                                                                                             |       |       |       |
|          |       |                                                                                                     |       |       |       |
|          |       | EVENTS OF  DEFAULT                                                                                       |       |       |       |
|          |       |                                                                                                     |       |       |       |
| SECTION  8.01 |       | Events of Default                                                                                        |       | 105        |       |
| SECTION 8.02  |       | Application of Proceeds                                                                                  |       | 108        |       |

 

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| Section        | ** ** | ** **                                                  | ** ** | ** ** | ** ** | ** ** | ** ** |
|----------------|------------|-------------------------------------------------------------|------------|------------|------------|------------|------------|
|           |       |                                                        |       |       |       |
|           |       | ARTICLE IX                                                  |       |       |       |
|           |       |                                                        |       |       |       |
|           |       | THE  ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT          |       |       |       |
|           |       |                                                        |       |       |       |
| SECTION  9.01  |       | Appointment and  Authority                                  |       | 110        |       |
| SECTION  9.02  |       | Rights as a Lender                                          |       | 110        |       |
| SECTION  9.03  |       | Exculpatory Provisions                                      |       | 110        |       |
| SECTION  9.04  |       | Reliance by Agent                                           |       | 111        |       |
| SECTION  9.05  |       | Delegation of Duties                                        |       | 112        |       |
| SECTION  9.06  |       | Resignation of Agent                                        |       | 112        |       |
| SECTION  9.07  |       | Non-Reliance on Agent  and Other Lenders                    |       | 112        |       |
| SECTION  9.08  |       | No Other Duties, etc                                        |       | 113        |       |
|           |       |                                                        |       |       |       |
|           |       | ARTICLE X                                                   |       |       |       |
|           |       |                                                        |       |       |       |
|           |       | MISCELLANEOUS                                               |       |       |       |
|           |       |                                                        |       |       |       |
| SECTION  10.01 |       | Notices                                                     |       | 113        |       |
| SECTION  10.02 |       | Waivers; Amendment                                          |       | 115        |       |
| SECTION  10.03 |       | Expenses; Indemnity;  Damage Waiver                         |       | 118        |       |
| SECTION  10.04 |       | Successors and Assigns                                      |       | 120        |       |
| SECTION  10.05 |       | Survival of Agreement                                       |       | 122        |       |
| SECTION  10.06 |       | Counterparts;  Integration; Effectiveness                   |       | 123        |       |
| SECTION  10.07 |       | Severability                                                |       | 123        |       |
| SECTION  10.08 |       | Right of Setoff                                             |       | 123        |       |
| SECTION  10.09 |       | Governing Law;  Jurisdiction; Consent to Service of Process |       | 124        |       |
| SECTION  10.10 |       | Waiver of Jury Trial                                        |       | 124        |       |
| SECTION  10.11 |       | Headings                                                    |       | 124        |       |
| SECTION  10.12 |       | Treatment of Certain  Information; Confidentiality          |       | 124        |       |
| SECTION  10.13 |       | USA PATRIOT Act Notice                                      |       | 125        |       |
| SECTION  10.14 |       | Interest Rate  Limitation                                   |       | 125        |       |
| SECTION  10.15 |       | Lender Addendum                                             |       | 126        |       |
| SECTION  10.16 |       | Obligations Absolute                                        |       | 126        |       |
| SECTION 10.17  |       | Designated Senior Indebtedness                              |       | 126        |       |

 
| ANNEXES          |   |                                                  |
|------------------|--------|-------------------------------------------------------|
|             |   |                                                  |
| Annex I          |   | Applicable Margin                                     |
|             |   |                                                  |
| SCHEDULES        |   |                                                  |
|             |   |                                                  |
| Schedule 1.01(a) |   | Refinancing Indebtedness  to Be Repaid                |
| Schedule 3.03    |   | Governmental Approvals;  Compliance with Laws         |
| Schedule 3.06(b) |   | Third-Party Use of  Copyrights, Patents or Trademarks |
| Schedule 3.06(c) |   | Violations or  Proceedings                            |
| Schedule 3.09    |   | Material Agreements                                   |
| Schedule 3.18    |   | Environmental Matters                                 |
| Schedule 3.19    |   | Insurance                                             |

 

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| Schedule 4.01(g)      |   | Local Counsel                                               |
|-----------------------|--------|-------------------------------------------------------------|
| Schedule 4.01(n)(iii) |   | Landlord Access  Agreements                                 |
| Schedule 4.02(e)      |   | Existing Intercompany  Loans                                |
| Schedule 6.01(b)      |   | Existing Indebtedness                                       |
| Schedule 6.02(c)      |   | Existing Liens                                              |
| Schedule 6.04(b)      |   | Existing Investments                                        |
| Schedule 5.15         |   | Post-Closing Matters                                        |
|                  |   |                                                        |
| EXHIBITS              |   |                                                        |
|                  |   |                                                        |
| Exhibit A             |   | Form of Administrative  Questionnaire                       |
| Exhibit B             |   | Form of Assignment and  Assumption                          |
| Exhibit C             |   | Form of Borrowing  Request                                  |
| Exhibit D             |   | Form of Compliance  Certificate                             |
| Exhibit E             |   | Form of Interest  Election Request                          |
| Exhibit F             |   | Form of Joinder  Agreement                                  |
| Exhibit G             |   | Form of Landlord Lien  Waiver, Access Agreement and Consent |
| Exhibit H-1           |   | Form of Cayman LC  Request                                  |
| Exhibit H-2           |   | Form of US LC Request                                       |
| Exhibit I             |   | Form of Lender Addendum                                     |
| Exhibit J-1           |   | Form of Cayman Share  Charge                                |
| Exhibit J-2           |   | Form of Cayman Deed of  Charge                              |
| Exhibit J-3           |   | Form of Cayman Security  Agreement                          |
| Exhibit K-1(A)        |   | Form of Cayman  Revolving Note                              |
| Exhibit K-2(A)        |   | Form of Cayman  Swingline Note                              |
| Exhibit K-1(B)        |   | Form of US Revolving  Note                                  |
| Exhibit K-2(B)        |   | Form of US Swingline  Note                                  |
| Exhibit L-1           |   | Form of Perfection Certificate                              |
| Exhibit L-2           |   | Form of Perfection  Certificate Supplement                  |
| Exhibit M             |   | Form of Security  Agreement                                 |
| Exhibit N             |   | Form of Opinion of  Company Counsel                         |
| Exhibit O             |   | Form of Solvency  Certificate                               |
| Exhibit P             |   | Form of Intercompany  Note                                  |
| Exhibit Q             |   | Form of Non-Bank Certificate                                |

 

 

v

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**CREDIT AGREEMENT**

***THIS CREDIT AGREEMENT***(this “**Agreement**”) dated as of September 18,2006, among SCIELE PHARMA, INC., a Delaware corporation (“**US Borrower**”),SCIELE PHARMA CAYMAN LTD., an exempted company incorporated under CaymanIslands law (“**Cayman Borrower**”; and togetherwith the US Borrower, “**Borrowers**”, andeach individually a “**Borrower**”), theGuarantors (such term and each other capitalized term used but not definedherein having the meaning given to it in Article I), the Lenders,UBS SECURITIES LLC and LASALLE BANK NATIONAL ASSOCIATION, as joint leadarrangers (in such capacity, “**Arrangers**”),LASALLE BANK NATIONAL ASSOCIATION as syndication agent (in such capacity, “**Syndication Agent**”), and UBS LOAN FINANCE LLC, as swinglinelender (in such capacity, “**Swingline Lender**”),and UBS AG, STAMFORD BRANCH, as issuing bank (in such capacity, “**Issuing Bank**”), as administrative agent (in such capacity, “**Administrative Agent**”) for the Lenders and as collateralagent (in such capacity, “**Collateral Agent**”)for the Secured Parties and the Issuing Bank.

**WITNESSETH:**

***WHEREAS,***each of the Borrowers has requested the Lenders to extend credit in the formof Revolving Loans at any time and from time to time prior to the FinalMaturity Date, in an aggregate principal amount at any time outstanding to bothBorrowers not in excess of $100,000,000.

***WHEREAS***,each of the Borrowers has requested the Swingline Lender to make SwinglineLoans, at any time and from time to time prior to the Final Maturity Date, inan aggregate principal amount at any time outstanding to both Borrowers not inexcess of $5,000,000.

***WHEREAS,***each of the Borrowers has requested the Issuing Bank to issue letters ofcredit, in an aggregate face amount at any time outstanding for both Borrowersnot in excess of $5,000,000, to support payment obligations incurred in theordinary course of business by the Borrowers and their respective Subsidiaries.

***WHEREAS,***the proceeds of the Loans are to be used in accordance with Section 3.12.

***NOW, THEREFORE,***the Lenders are willing to extend such credit to each of the Borrowers and theIssuing Bank is willing to issue such letters of credit for the account of eachBorrower, on the terms and subject to the conditions set forth herein.  Accordingly, the parties hereto agree asfollows:

# **ARTICLE I**

# **DEFINITIONS**

**SECTION 1.01     DefinedTerms**.  As used inthis Agreement, the following terms shall have the meanings specified below:

“**ABR**”, when usedin reference to any Loan or Borrowing, is used when such Loan, or the Loanscomprising such Borrowing, are bearing interest at a rate determined byreference to the Alternate Base Rate.

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

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

“**Acquisition Consideration**”shall mean the license or purchase consideration for any Permitted Acquisitionand all other payments by a Borrower or any of its Subsidiaries in exchangefor, or as part of, or in connection with, any Permitted Acquisition, whetherpaid in cash or by exchange of Equity Interests or of properties or otherwiseand whether payable at or prior to the consummation of such Permitted Acquisitionor deferred for payment at any future time, whether or not any such futurepayment is subject to the occurrence of any contingency, and includes any andall payments representing the purchase price and any assumptions ofIndebtedness, “earn-outs” and other agreements to make any payment the amountof which is, or the terms of payment of which are, in any respect subject to orcontingent upon the revenues, income, cash flow or profits (or the like) of anyperson or business; *provided* that(a) any such future payment that is subject to a contingency shall beconsidered Acquisition Consideration only to the extent of the reserve, if any,required under GAAP at the time of such sale to be established in respectthereof by such Borrower or Subsidiary, and (b) in the case of a license ofIntellectual Property, such future payment shall be considered AcquisitionConsideration only to the extent it is payable within two years aftercommencement of such license.

“**Adjusted LIBOR Rate**”shall mean, with respect to any Eurodollar Borrowing for any Interest Period,(a) an interest rate per annum (rounded upward, if necessary, to thenearest 1/100th of 1%) determined by the Administrative Agent to be equal tothe LIBOR Rate for such Eurodollar Borrowing in effect for such Interest Perioddivided by (b) 1 *minus* theStatutory Reserves (if any) for such Eurodollar Borrowing for such InterestPeriod.

“**Administrative Agent**”shall have the meaning assigned to such term in the preamble hereto and includeseach other person appointed as the successor pursuant to Article X.

“**Administrative Agent Fee**”shall have the meaning assigned to such term in Section 2.05(b).

“**AdministrativeQuestionnaire**” shall mean an Administrative Questionnaire in substantiallythe form of Exhibit A.

“**Affiliate**”shall mean, when used with respect to a specified person, another person thatdirectly, or indirectly through one or more intermediaries, Controls or isControlled by or is under common Control with the person specified; *provided*,*however*, that,for purposes of Section 6.09, the term “Affiliate” shall alsoinclude (i) any person that directly or indirectly owns more than 10% ofany class of Equity Interests of the person specified or (ii) any personthat is an executive officer or director of the person specified.

“**Agents**” shallmean the Administrative Agent and the Collateral Agent; and “**Agent**” shall mean any of them.

“**Agreement**”shall have the meaning assigned to such term in the preamble hereto.

“**Alternate Base Rate**”shall mean, for any day, a rate per annum (rounded upward, if necessary, to thenearest 1/100th of 1%) equal to the greater of (a) the Base Rate in effecton such day and (b) the Federal Funds Effective Rate in effect on such day*plus* 0.50%.  If the Administrative Agent shall havedetermined (which determination shall be conclusive absent manifest error) thatit is unable to 

2

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ascertain the Federal Funds Effective Rate for anyreason the Alternate Base Rate shall be determined without regard toclause (b) of the preceding sentence until the circumstances giving riseto such inability no longer exist.  Anychange in the Alternate Base Rate due to a change in the Base Rate or the FederalFunds Effective Rate shall be effective on the effective date of such change inthe Base Rate or the Federal Funds Effective Rate, respectively.

“**Anti-Terrorism Laws**”shall have the meaning assigned to such term in Section 3.21.

“**Applicable Fee**”shall mean, for any day, with respect to any Commitment, the applicable percentageset forth in Annex I under the caption “Applicable Fee”.

“**Applicable Margin**”shall mean, for any day, with respect to any Revolving Loan, the applicablepercentage set forth in Annex I under the appropriate caption.

“**Applicable Percentage**”shall mean, with respect to any Lender, the percentage of the total Loansand Commitments represented by such Lender’s Loans and Commitments.

“**Approved Fund**”shall mean any Fund that is administered or managed by (a) a Lender, (b) anAffiliate of a Lender or (c) an entity or an Affiliate of an entity thatadministers or manages a Lender.

“**Arrangers**”shall have the meaning assigned to such term in the preamble hereto.

“**Asset Sale**”shall mean (a) any conveyance, sale, lease, sublease, assignment, transferor other disposition (including by way of merger or consolidation and includingany Sale and Leaseback Transaction) of any property (including any IntellectualProperty and including any conveyance, sale, lease, sublease, assignment,transfer or other disposition from one Company to another Company) but excludingsales of inventory and dispositions of cash and cash equivalents, in each case,in the ordinary course of business, by any Borrower or any of its Subsidiariesand (b) any issuance or sale of any Equity Interests of any Subsidiary ofany Borrower, in each case, to any person other than (i) a Borrower,(ii) any Guarantor or (iii) other than for purposes of Section6.06, any other Subsidiary.

“**Assignment and Assumption**”shall mean an assignment and assumption entered into by a Lender and anEligible Assignee (with the consent of any party whose consent is required by Section10.04(b)), and accepted by the Administrative Agent, in substantially theform of Exhibit B, or any other form approved by the AdministrativeAgent.

“**Attributable Indebtedness**”shall mean, when used with respect to any Sale and Leaseback Transaction, as atthe time of determination, the present value (discounted at a rate equivalentto the relevant Borrower’s then-current weighted average cost of funds forborrowed money as at the time of determination, compounded on a semi-annualbasis) of the total obligations of the lessee for rental payments during theremaining term of the lease included in any such Sale and Leaseback Transaction.

“**Bailee Letter**”shall have the meaning assigned thereto in the Security Agreement.

“**Base Rate**”shall mean, for any day, a rate per annum that is equal to the corporate baserate of interest established by the Administrative Agent from time to time;each change in the Base Rate shall be effective on the date such change iseffective.  The corporate base rate isnot necessarily the lowest rate charged by the Administrative Agent to itscustomers.

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“**Board**” shallmean the Board of Governors of the Federal Reserve System of the United States.

“**Board of Directors**”shall mean, with respect to any person, (a) in the case of any corporation,the board of directors of such person, (b) in the case of any limitedliability company, the board of managers of such person, (c) in the caseof any partnership, the Board of Directors of the general partner of suchperson and (d) in any other case, the functional equivalent of the foregoing.

“**Borrower**” and “**Borrowers**” shall have the meanings assigned to such terms inthe preamble hereto.

“**Borrowing**”shall mean (a) Revolving Loans of the same Class and Type, made, converted orcontinued on the same date and, in the case of Eurodollar Loans, as to which asingle Interest Period is in effect, or (b) a Swingline Loan.

“**Borrowing Request**”shall mean a request by the US Borrower or the Cayman Borrower, as the case maybe, in accordance with the terms of Section 2.03 and substantiallyin the form of Exhibit C, or such other form as shall be approvedby the Administrative Agent.

“**Business Day**”shall mean any day other than a Saturday, Sunday or other day on which banks inNew York City are authorized or required by law to close; *provided*,*however*, that when used in connection with a EurodollarLoan, the term “Business Day” shall also exclude any day on which banks are notopen for dealings in dollar deposits in the London interbank market.

“**Capital Assets****”** shall mean,with respect to any person, all equipment, fixed assets and Real Property orimprovements thereof , or replacements or substitutions therefor or additionsthereto, that, in accordance with GAAP, have been or should be reflected asadditions to property, plant or equipment on the balance sheet of such person.

“**Capital Expenditures**”shall mean, for any period, without duplication, all expenditures made directlyor indirectly by the US Borrower and its Subsidiaries during such period forCapital Assets (whether paid in cash or other consideration, financed by theincurrence of Indebtedness or accrued as a liability), but excluding  any portion of such increase attributablesolely to acquisitions of property, plant and equipment in PermittedAcquisitions.  For purposes of thisdefinition, the purchase price of equipment or other fixed assets that arepurchased simultaneously with the trade-in of existing assets or with insuranceproceeds shall be included in Capital Expenditures only to the extent of thegross amount by which such purchase price exceeds the credit granted by theseller of such assets for the assets being traded in at such time or the amountof such insurance proceeds, as the case may be.

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

“**Cash Equivalents**”shall mean, as to any person, (a) securities issued, or directly, unconditionallyand fully guaranteed or insured, by the United States or any agency orinstrumentality thereof (*provided* thatthe full faith and credit of the United States is pledged in support thereof)having maturities of not more than one year from the date of acquisition bysuch person; (b) time deposits and 

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certificates of deposit of any Lender or anycommercial bank having, or which is the principal banking subsidiary of a bankholding company organized under the laws of the United States, any statethereof or the District of Columbia having, capital and surplus aggregating inexcess of $500.0 million and a rating of “A” (or such other similar equivalentrating) or higher by at least one nationally recognized statistical ratingorganization (as defined in Rule 436 under the Securities Act) with maturitiesof not more than one year from the date of acquisition by such person;(c) repurchase obligations with a term of not more than 30 days forunderlying securities of the types described in clause (a) above enteredinto with any bank meeting the qualifications specified in clause (b)above, which repurchase obligations are secured by a valid perfected securityinterest in the underlying securities; (d) commercial paper issued by anyperson incorporated in the United States rated at least A-1 or the equivalentthereof by Standard & Poor’s Rating Service or at least P-1 or theequivalent thereof by Moody’s Investors Service Inc., and in each case maturingnot more than one year after the date of acquisition by such person;(e) investments in money market funds substantially all of whose assetsare comprised of securities of the types described in clauses (a) through(d) above; and (f) demand deposit accounts maintained in the ordinarycourse of business.

“**Cash Interest Expense**”shall mean, for any period, Consolidated Interest Expense for such period, *less* the sum of (a) interest on any debt paid by theincrease in the principal amount of such debt including by issuance ofadditional debt of such kind, (b) items described in clause (c) or,other than to the extent paid in cash, clause (g) of the definition of “ConsolidatedInterest Expense” and (c) gross interest income of the US Borrower and itsSubsidiaries for such period.

“**Casualty Event**”shall mean any involuntary loss of title, any involuntary loss of, damage to orany destruction of, or any condemnation or other taking (including by anyGovernmental Authority) of, any property of the US Borrower or any of itsSubsidiaries.  **“CasualtyEvent”** shall include but not be limited to any taking of all or anypart of any Real Property of any person or any part thereof, in or by condemnationor other eminent domain proceedings pursuant to any Requirement of Law, or byreason of the temporary requisition of the use or occupancy of all or any partof any Real Property of any person or any part thereof by any GovernmentalAuthority, civil or military, or any settlement in lieu thereof.

“**Cayman Borrower**”shall have the meaning assigned to such term in the preamble hereto.

“**Cayman Charged Property**”shall mean the Charged Property (as defined in the Cayman Share Charge**)**and all other property pledged or granted as collateralpursuant to the Cayman Share Charge.

“**Cayman Deed of Charge”**shallmean a Deed of Charge substantially in the form of Exhibit J-2 among the CaymanBorrower and Collateral Agent for the benefit of the Secured Parties.

“**Cayman LCDisbursement**” shall mean a payment or disbursement made by the IssuingBank pursuant to a drawing under a Cayman Letter of Credit.

“**Cayman LC Exposure**”shall mean at any time the sum of (a) the aggregate undrawn amount of alloutstanding Cayman Letters of Credit at such time *plus* (b) the aggregate principal amount of all CaymanReimbursement Obligations outstanding at such time.  The Cayman LC Exposure of any RevolvingLender at any time shall mean its Pro Rata Percentage of the aggregate CaymanLC Exposure at such time.

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“**Cayman LC ParticipationFee**” shall have the meaning assigned to such term in Section 2.05(c).

“**Cayman LC Request**”shall mean a request by the Cayman Borrower in accordance with the terms of Section 2.18(A)(b)and substantially in the form of Exhibit H-1, or such other form asshall be approved by the Administrative Agent.

“**Cayman Letter ofCredit**” shall mean any (i) Standby Letter of Credit and(ii) Commercial Letter of Credit, in each case, issued or to be issued byan Issuing Bank for the account of the Cayman Borrower pursuant to Section 2.18(A).

“**Cayman Notes**”shall mean any notes evidencing the Cayman Revolving Loans or Cayman SwinglineLoans issued pursuant to this Agreement, if any, substantially in the form of Exhibit K-1(A)or K-2(A).

“**Cayman Obligations**”shall mean (a) obligations of the Cayman Borrower and the other ForeignLoan Parties from time to time arising under or in respect of the due andpunctual payment of (i) the principal of and premium, if any, and interest(including interest accruing during the pendency of any bankruptcy, insolvency,receivership or other similar proceeding, regardless of whether allowed orallowable in such proceeding) on the Cayman Revolving Loans, when and as due,whether at maturity, by acceleration, upon one or more dates set for prepaymentor otherwise, (ii) each payment required to be made by the Cayman Borrowerand the other Foreign Loan Parties under this Agreement in respect of anyCayman Letter of Credit, when and as due, including payments in respect ofCayman Reimbursement Obligations, interest thereon and obligations to providecash collateral and (iii) all other monetary obligations, includingForeign Guaranteed Obligations and fees, costs, expenses and indemnities,whether primary, secondary, direct, contingent, fixed or otherwise (including monetaryobligations incurred during the pendency of any bankruptcy, insolvency, receivershipor other similar proceeding, regardless of whether allowed or allowable in suchproceeding), of the Cayman Borrower and the other Foreign Loan Parties underthis Agreement and the other Loan Documents, and (b) the due and punctualperformance of all covenants, agreements, obligations and liabilities of theCayman Borrower and the other Foreign Loan Parties under or pursuant to thisAgreement and the other Loan Documents.

“**CaymanReimbursement Obligations**” shall mean the Cayman Borrower’s obligationsunder Section 2.18(A)(e) to reimburse Cayman LC Disbursements.

“**Cayman RevolvingLoan**” shall mean a Loan made by the Lenders to the Cayman Borrowerpursuant to Section 2.01(a). Each Cayman Revolving Loan shall either be an ABR Revolving Loan or aEurodollar Revolving Loans.

“**Cayman Revolving Exposure**”shall mean, with respect to any Lender at any time, the aggregate principalamount at such time of all outstanding Cayman Revolving Loans of such Lender, *plus* the aggregate amount at such time of such Lender’sCayman LC Exposure, *plus* the aggregateamount at such time of such Lender’s Cayman Swingline Exposure.

“**Cayman Security Agreement**”shall mean a Security Agreement substantially in the form of Exhibit J-3among the Cayman Borrower and Collateral Agent for the benefit of the SecuredParties.

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“**Cayman Share Charge**”shall mean a Share Charge and Mortgage substantially in the form of Exhibit J-1between the US Borrower and Collateral Agent for the benefit of the Secured Parties.

“**Cayman Swingline Exposure**”shall mean at any time the aggregate principal amount at such time of alloutstanding Cayman Swingline Loans.  TheCayman Swingline Exposure of any Revolving Lender at any time shall equal itsPro Rata Percentage of the aggregate Cayman Swingline Exposure at such time.

“**Cayman SwinglineLoan**” shall mean any loan made by the Swingline Lender pursuant to Section 2.17(A)(a).

“**CERCLA**” shallmean the Comprehensive Environmental Response, Compensation, and Liability Actof 1980, as amended, 42 U.S.C. § 9601 *et seq.*and allimplementing regulations.

“**Change in Control**”shall mean the occurrence of one or more of the following events:

(a)           anysale, lease, exchange or other transfer (in one transaction or a series of relatedtransactions), directly or indirectly, of all or substantially all of theassets of either of the Borrowers or the Companies taken as a whole, to anyperson or group of related persons, as defined in Section 13(d) of the ExchangeAct (a **“Group”**) other than a sale, transfer,lease, conveyance or other disposition of all or substantially all of theproperty of assets that falls within the description contained in clause (b)below; or

(b)           thereoccurs any transaction or event or any series of transactions or events(whether by means of an exchange offer, liquidation, tender offer,consolidation, merger, combination, reclassification, recapitalization, assetsale, lease of assets or otherwise) in connection with which all orsubstantially all of the US Borrower’s common stock is exchanged for, convertedinto, acquired for or constitutes solely, the right to receive stock, othersecurities, other property, assets or cash, unless either:

(i)            thepersons that “beneficially owned,” directly or indirectly, the shares of the USBorrower’s voting stock immediately prior to such transaction, “beneficiallyowns ,” directly or indirectly, immediately after such transaction, shares ofthe surviving or continuing entity’s voting Equity Interests representing atleast a majority of the total voting power of all outstanding classes of votingEquity Interests of the surviving or continuing person; or

(ii)           atleast 90% of the consideration (other than cash payments for fractional sharesor pursuant to statutory appraisal rights) in such transaction consists ofcommon stock, ordinary shares or American Depository Shares, and any associatedrights, traded on a United States national securities exchange or quoted on theNasdaq National Market (or that will be so traded or quoted when issued orexchanged in connection with such transaction); or

(c)           theapproval by the holders of either Borrower’s capital stock of any plan or proposalfor such Borrower’s liquidation or dissolution, whether or not otherwise incompliance with this Agreement or any other indenture or agreement governingIndebtedness of such Borrower; or

(d)           anyperson or Group shall become the beneficial owner (as defined in Rule 13d-3under the Exchange Act) of shares representing more than 50% of the aggregateordinary voting power represented by the US Borrower’s issued and outstandingvoting stock; or

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(e)           thefirst day on which a majority of the members of the US Borrower’s Board ofDirectors are not Continuing Directors; or

(f)            theUS Borrower shall at any time cease to own one hundred percent (100%) of theissued and outstanding Equity Interest in the Cayman Borrower.

For purposes of this definition, a person shall not bedeemed to have beneficial ownership of Equity Interests subject to a stockpurchase agreement, merger agreement or similar agreement until theconsummation of the transactions contemplated by such agreement.

“**Change in Law**”shall mean the occurrence, after the date of this Agreement, of any of thefollowing:  (a) the adoption ortaking into effect of any law, treaty, order, policy, rule or regulation,(b) any change in any law, treaty, order, policy, rule or regulation or inthe administration, interpretation or application thereof by any GovernmentalAuthority or (c) the making or issuance of any request, guideline ordirective (whether or not having the force of law) by any GovernmentalAuthority.

“**Charges**” shallhave the meaning assigned to such term in Section 10.14.

“**Class**,” whenused in reference to any Loan or Borrowing, refers to whether such Loan, or theLoans comprising such Borrowing, are Revolving Loans or Swingline Loans and,when used in reference to any Commitment, refers to whether such Commitment isa Revolving Commitment or Swingline Commitment, in each case, under thisAgreement as originally in effect or pursuant to Section 2.19, of whichsuch Loan, Borrowing or Commitment shall be a part.

“**Closing Date**”shall mean September 18, 2006.

“**Code**” shallmean the Internal Revenue Code of 1986, as amended.

“**Collateral**”shall mean, collectively, all of the Security Agreement Collateral, the MortgagedProperty, the Cayman Charged Property and all other property of whatever kindand nature subject or purported to be subject from time to time to a Lien underany Security Document.

“**Collateral Agent**”shall have the meaning assigned to such term in the preamble hereto.

“**Commercial Letter ofCredit**” shall mean any letter of credit or similar instrument issuedhereunder for the purpose of providing credit support in connection with thepurchase of materials, goods or services by a Borrower or any of itsSubsidiaries in the ordinary course of their businesses.

“**Commitment**”shall mean, with respect to any Lender, such Lender’s Revolving Commitment, andany Commitment to make Revolving Loans of a new Class extended by such Lenderas provided in Section 2.19.

“**Commitment Fee**”shall have the meaning assigned to such term in Section 2.05(a).

“**Companies**”shall mean the US Borrower and its Subsidiaries (including, without limitation,the Cayman Borrower); and “**Company**” shallmean any one of them.

“**Compliance Certificate**”shall mean a certificate of a Financial Officer substantially in the form of Exhibit D.

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“**Confidential InformationMemorandum**” shall mean that certain confidential information memorandumdated as of July 2006.

“**Consolidated AmortizationExpense**” shall mean, for any period, the amortization expense of theUS Borrower and its Subsidiaries for such period, determined on a consolidatedbasis in accordance with GAAP.

“**Consolidated CurrentAssets**” shall mean, as at any date of determination, the total assetsof the US Borrower and its Subsidiaries which may properly be classified ascurrent assets on a consolidated balance sheet of the US Borrower and itsSubsidiaries in accordance with GAAP.

“**Consolidated CurrentLiabilities**” shall mean, as at any date of determination, the totalliabilities of the US Borrower and its Subsidiaries which may properly beclassified as current liabilities (other than the current portion of any Loans)on a consolidated balance sheet of the US Borrower and its Subsidiaries in accordancewith GAAP.

“**Consolidated DepreciationExpense**” shall mean, for any period, the depreciation expense of theUS Borrower and its Subsidiaries for such period, determined on a consolidatedbasis in accordance with GAAP.

“**Consolidated EBITDA**”shall mean, for any period, Consolidated Net Income for such period, adjustedby (x) *adding thereto*, in each case only to theextent (and in the same proportion) deducted in determining such ConsolidatedNet Income and without duplication (and with respect to the portion ofConsolidated Net Income attributable to any Subsidiary of the US Borrower onlyif a corresponding amount would be permitted at the date of determination to bedistributed to the US Borrower by such Subsidiary without prior approval (thathas not been obtained) pursuant to the terms of its Organizational Documentsand all agreements, instruments and Requirements of Law applicable to suchSubsidiary or its equityholders):

(a)           ConsolidatedInterest Expense for such period,

(b)           ConsolidatedAmortization Expense for such period,

(c)           ConsolidatedDepreciation Expense for such period,

(d)           ConsolidatedTax Expense for such period, and

(e)           theaggregate amount of all other non-cash charges (including non-cash chargesrelated to the accounting of grant of stock options to personnel of the USBorrower) reducing Consolidated Net Income (excluding any non-cash charge thatresults in an accrual of a reserve for cash charges in any future period) forsuch period, and

(y) *subtracting therefrom*the aggregate amount of all non-cash items increasing Consolidated Net Income(other than the accrual of revenue or recording of receivables in the ordinarycourse of business) for such period.

Consolidated EBITDA shall be calculated on a Pro FormaBasis to give effect to any Permitted Acquisition and Asset Sales (other thanany dispositions in the ordinary course of business) consummated at any time onor after the first day of the Test Period thereof as if each such Permitted 

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Acquisition had been effected on the first day of suchperiod and as if each such Asset Sale had been consummated on the day prior tothe first day of such period.

“**Consolidated Fixed ChargeCoverage Ratio**” shall mean, for any Test Period, the ratio of(a) Consolidated EBITDA for such Test Period to (b) ConsolidatedFixed Charges for such Test Period.

“**Consolidated Fixed Charges**”shall mean, for any period, the sum, without duplication, of

(a)           ConsolidatedInterest Expense for such period;

(b)           theaggregate amount of Capital Expenditures for such period;

(c)           allcash payments in respect of income taxes made during such period (net of anycash refund in respect of income taxes actually received during such period);

(d)           theprincipal amount of all scheduled amortization payments on all Indebtedness(including the principal component of all Capital Lease Obligations) of the USBorrower and its Subsidiaries for such period (as determined on the first dayof the respective period);

(e)           theproduct of (i) all dividend payments on any series of Disqualified CapitalStock of the US Borrower or any of its Subsidiaries (other than, in the case ofa Subsidiary, dividend payments to the US Borrower or any of its Subsidiaries) *multiplied by* (ii) a fraction, the numerator of whichis one and the denominator of which is one minus then current combined federal,state and local statutory tax rate of the US Borrower and its Subsidiaries, expressedas a decimal; and

(f)            theproduct of (i) all cash dividend payments on any Preferred Stock (otherthan Disqualified Capital Stock) of the US Borrower or any of its Subsidiaries(other than dividend payments to the US Borrower or any of its Subsidiaries) *multiplied by* (ii) a fraction, the numerator of whichis one and the denominator of which is one minus then current combined federal,state and local statutory tax rate of the US Borrower and its Subsidiaries,expressed as a decimal.

“**Consolidated Indebtedness**”shall mean, as at any date of determination, the aggregate amount of allIndebtedness and all US LC Exposure of the US Borrower and its DomesticSubsidiaries and all Cayman LC Exposure of the Cayman Borrower and itsSubsidiaries, determined on a consolidated basis.

“**Consolidated InterestExpense**” shall mean, for any period, the total consolidated interestexpense of the US Borrower and its Subsidiaries for such period determined on aconsolidated basis in accordance with GAAP *plus*, withoutduplication:

(a)           imputedinterest on Capital Lease Obligations and Attributable Indebtedness of the USBorrower and its Subsidiaries for such period;

(b)           commissions,discounts and other fees and charges owed by the US Borrower or any of itsSubsidiaries with respect to letters of credit securing financial obligations,bankers’ acceptance financing and receivables financings for such period;

 

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(c)           amortizationof debt issuance costs, debt discount or premium and other financing fees and expensesincurred by the US Borrower or any of its Subsidiaries for such period;

(d)           cashcontributions to any employee stock ownership plan or similar trust made by theUS Borrower or any of its Subsidiaries to the extent such contributions areused by such plan or trust to pay interest or fees to any person (other thanthe US Borrower or a Wholly Owned Subsidiary) in connection with Indebtednessincurred by such plan or trust for such period;

(e)           allinterest paid or payable with respect to discontinued operations of the US Borroweror any of its Subsidiaries for such period;

(f)            theinterest portion of any deferred payment obligations of the US Borrower or any ofits Subsidiaries for such period; and

(g)           allinterest on any Indebtedness of the US Borrower or any of its Subsidiaries ofthe type described in clause (f) or (k) of the definition of “Indebtedness”for such period.

Consolidated Interest Expense shall be calculated on aPro Forma Basis to give effect to any Indebtedness incurred, assumed orpermanently repaid or extinguished during the relevant Test Period inconnection with any Permitted Acquisitions and Asset Sales (other than anydispositions in the ordinary course of business) as if such incurrence,assumption, repayment or extinguishing had been effected on the first day ofsuch period.

“**Consolidated Net Income**”shall mean, for any period, the consolidated net income (or loss) of the USBorrower and its Subsidiaries determined on a consolidated basis in accordancewith GAAP; *provided* that there shall be excludedfrom such net income (to the extent otherwise included therein), without duplication:

(a)           thenet income (or loss) of any person (other than a Subsidiary of the US Borrower)in which any person other than the US Borrower and its Subsidiaries has anownership interest, except to the extent that cash in an amount equal to anysuch income has actually been received by the US Borrower or (subject toclause (b) below) any of its Subsidiaries during such period;

(b)           thenet income of any Subsidiary of the US Borrower during such period to theextent that the declaration or payment of dividends or similar distributions bysuch Subsidiary of that income is not permitted by operation of the terms ofits Organizational Documents or any agreement, instrument or Requirement of Lawapplicable to that Subsidiary during such period, except that the US Borrower’sequity in net loss of any such Subsidiary for such period shall be included indetermining Consolidated Net Income;

(c)           anygain (or loss), together with any related provisions for taxes on any such gain(or the tax effect of any such loss), realized during such period by the USBorrower or any of its Subsidiaries upon any Asset Sale (other than anydispositions in the ordinary course of business) by the US Borrower or any ofits Subsidiaries;

(d)           gainsand losses due solely to fluctuations in currency values and the related taxeffects determined in accordance with GAAP for such period;

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(e)           earningsresulting from any reappraisal, revaluation or write-up of assets;

(f)            unrealizedgains and losses with respect to Hedging Obligations for such period; and

(g)           anyextraordinary gain (or extraordinary loss), together with any related provisionfor taxes on any such gain (or the tax effect of any such loss), recorded orrecognized by the US Borrower or any of its Subsidiaries during such period.

For purposes of this definition of “Consolidated NetIncome,” Consolidated Net Income shall be reduced (to the extent not alreadyreduced thereby) by the amount of any payments to or on behalf of the Borrowersmade pursuant to Sections 6.08(c) and (d).

“**Consolidated Tax Expense**”shall mean, for any period, the tax expense of the US Borrower and its Subsidiaries,for such period, determined on a consolidated basis in accordance with GAAP.

“**Contested Collateral LienConditions**” shall mean, with respect to any Permitted Lien of thetype described in clauses (a), (b), (e) and (f) of Section 6.02,the following conditions:

(a)           therelevant Company shall cause any proceeding instituted contesting such Lien tostay the sale or forfeiture of any portion of the Collateral on account of suchLien;

(b)           atthe option and at the request of the Administrative Agent, to the extent suchLien is in an amount in excess of $100,000, the appropriate Loan Party shallmaintain cash reserves in an amount sufficient to pay and discharge such Lienand the Administrative Agent’s reasonable estimate of all interest and penaltiesrelated thereto; and

(c)           suchLien shall in all respects be subject and subordinate in priority to the Lienand security interest created and evidenced by the Security Documents, exceptif and to the extent that the Requirement of Law creating, permitting orauthorizing such Lien provides that such Lien is or must be superior to theLien and security interest created and evidenced by the Security Documents.

“**Contingent Obligation**”shall mean, as to any person, any obligation, agreement, understanding or arrangementof such person guaranteeing or intended to guarantee any Indebtedness, leases,dividends or other obligations (“**primary obligations**”)of any other person (the “**primary obligor**”)in any manner, whether directly or indirectly, including any obligation of suchperson, whether or not contingent, (a) to purchase any such primaryobligation or any property constituting direct or indirect security therefor;(b) to advance or supply funds (i) for the purchase or payment of anysuch primary obligation or (ii) to maintain working capital or equitycapital of the primary obligor or otherwise to maintain the net worth or solvencyof the primary obligor; (c) to purchase property, securities or servicesprimarily for the purpose of assuring the owner of any such primary obligationof the ability of the primary obligor to make payment of such primaryobligation; (d) with respect to bankers’ acceptances, letters of creditand similar credit arrangements, until a reimbursement obligation arises (whichreimbursement obligation shall constitute Indebtedness); or (e) otherwiseto assure or hold harmless the holder of such primary obligation against lossin respect thereof; *provided*,*however*, that the term “Contingent Obligation” shall not includeendorsements of instruments for deposit or collection in the ordinary course ofbusiness or any product warranties.  Theamount of any Contingent Obligation 

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shall be deemed to be an amount equal to the stated ordeterminable amount of the primary obligation in respect of which suchContingent Obligation is made (or, if less, the maximum amount of such primaryobligation for which such person may be liable, whether singly or jointly,pursuant to the terms of the instrument evidencing such Contingent Obligation)or, if not stated or determinable, the maximum reasonably anticipated liabilityin respect thereof (assuming such person is required to perform thereunder) asdetermined by such person in good faith.

**“Continuing Director”** means anymember of the US Borrower’s Board of Directors who (a) was a member of suchBoard of Directors on the date of this Agreement, or (b) was nominated forelection or elected to such Board of Directors with the approval of a majorityof the Continuing Directors who were members of such Board at the time of suchnomination or election.

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

“**Control Agreement**”shall have the meaning assigned to such term in the Security Agreement.

“**Convertible Bond Indenture**”means that certain Indenture dated as of May 3, 2006 between the US Borrowerand Deutsche Bank Trust Company Americas, as Trustee, as the same may beamended, supplemented or otherwise modified from time to time.

“**Convertible Bond Documents**”means the Convertible Bond Indenture, the Convertible Bonds and any otherinstrument, document or agreement delivered pursuant thereto or in connectiontherewith.

“**Convertible Bonds**”means the US Borrower’s New 1.75% Contingent Convertible Senior SubordinatedNotes Due 2024 issued pursuant to the terms of the Convertible Bond Indenture.

“**Credit Extension**”shall mean, as the context may require, (i) the making of a Loan by a Lender or(ii) the issuance of any Letter of Credit, or the amendment, extension orrenewal of any existing Letter of Credit, by the Issuing Bank.

“**Cyprus Sciele”**shall mean Sciele Pharma Cyprus, Ltd., an entity organized under the laws ofCyprus.

“**Debt Issuance**”shall mean the incurrence by a Borrower or any of its Subsidiaries of anyIndebtedness after the Closing Date (other than as permitted by Section 6.01).

“**Debt Service**”shall mean, for any period, Cash Interest Expense for such period plusscheduled principal amortization of all Indebtedness for such period.

“**Default**” shallmean any event, occurrence or condition which is, or upon notice, lapse of timeor both would constitute, an Event of Default.

“**Default Rate**”shall have the meaning assigned to such term in Section 2.06(c).

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“**Disqualified Capital Stock**”shall mean any Equity Interest which, by its terms (or by the terms of anysecurity into which it is convertible or for which it is exchangeable), or uponthe happening of any event, (a) matures (excluding any maturity as theresult of an optional redemption by the issuer thereof) or is mandatorilyredeemable, pursuant to a sinking fund obligation or otherwise, or is redeemableat the option of the holder thereof, in whole or in part, on or prior to thefirst anniversary of the Final Maturity Date, (b) is convertible into orexchangeable (unless at the sole option of the issuer thereof) for(i) debt securities or (ii) any Equity Interests referred to in (a)above, in each case at any time on or prior to the first anniversary of theFinal Maturity Date, or (c) contains any repurchase obligation which maycome into effect prior to payment in full of all Obligations; *provided*,*however*, thatany Equity Interests that would not constitute Disqualified Capital Stock butfor provisions thereof giving holders thereof (or the holders of any securityinto or for which such Equity Interests is convertible, exchangeable or exercisable)the right to require the issuer thereof to redeem such Equity Interests uponthe occurrence of a change in control or an asset sale occurring prior to thefirst anniversary of the Final Maturity Date shall not constitute DisqualifiedCapital Stock if such Equity Interests provide that the issuer thereof will notredeem any such Equity Interests pursuant to such provisions prior to therepayment in full of the Obligations.

“**Dividend**” withrespect to any person shall mean that such person has declared or paid adividend or returned any equity capital to the holders of its Equity Interestsor authorized or made any other distribution, payment or delivery of property(other than Qualified Capital Stock of such person) or cash to the holders ofits Equity Interests as such, or redeemed, retired, purchased or otherwiseacquired, directly or indirectly, for consideration any of its Equity Interestsoutstanding (or any options or warrants issued by such person with respect toits Equity Interests), or set aside any funds for any of the foregoingpurposes, or shall have permitted any of its Subsidiaries to purchase orotherwise acquire for consideration any of the Equity Interests of such personoutstanding (or any options or warrants issued by such person with respect toits Equity Interests).  Without limitingthe foregoing, **“Dividends”** with respect to anyperson shall also include all payments made or required to be made by suchperson with respect to any stock appreciation rights, plans, equity incentiveor achievement plans or any similar plans or setting aside of any funds for theforegoing purposes.

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

“**Domestic Guarantor**”shall mean the US Borrower, Sciele Sales and any other Person that is organizedor existing under the laws of the United States, any state thereof or theDistrict of Columbia that is or becomes a party to this Agreement pursuant to Section 5.11and which provides a guarantee pursuant to Section 7.01(b)

“**Domestic Loan Parties**” shall mean the USBorrower and the other Domestic Guarantors.

“**Domestic Subsidiary**”shall mean any Subsidiary that is organized or existing under the laws of theUnited States, any state thereof or the District of Columbia.

**“Earn-Outs”**shall mean unsecured obligations that havebeen or may be incurred or are owing or may become owing to one or moresellers or licensors to make anypayment, the amount of which is, or the terms of payment of which are, subjectto or contingent upon the revenues, income, cash flow, or profits or otherresult of operations of, or product development, regulatory approval or otheractivities necessary to place product in commerce relating to, any business orproduct that has been 

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licensed or purchased, whether to be satisfied bypayment in cash or by exchange of Equity Interests or of properties.

“**Eligible Assignee**”shall mean (i) any Revolving Lender, (ii) an Affiliate of anyRevolving Lender, (iii) an Approved Fund of a Revolving Lender and(iv) any other person approved by the Administrative Agent, the IssuingBank, the Swingline Lender and the US Borrower (each such approval not to beunreasonably withheld or delayed); *provided* that(x) no approval of the US Borrower shall be required during the continuance ofa Default or prior to the completion of the primary syndication of theCommitments and Loans (as determined by the Arrangers) and (y) **“Eligible Assignee”** shall not include any Borrower or any ofits Affiliates or Subsidiaries or any natural person.

“**Embargoed Person**”shall have the meaning assigned to such term in Section 6.21.

“**Engagement Letter**”shall mean the confidential Engagement Letter, dated July 20, 2006, among theUS Borrower, LaSalle Bank National Association and UBS Securities  LLC.

“**Environment**”shall mean ambient air, indoor air, surface water and groundwater (includingpotable water, navigable water and wetlands), the land surface or subsurfacestrata, natural resources, the workplace or as otherwise defined in anyEnvironmental Law.

“**Environmental Claim**”shall mean any claim, notice, demand, order, action, suit, proceeding or othercommunication alleging liability for or obligation with respect to anyinvestigation, remediation, removal, cleanup, response, corrective action,damages to natural resources, personal injury, property damage, fines,penalties or other costs resulting from, related to or arising out of(i) the presence, Release or threatened Release in or into the Environmentof Hazardous Material at any location or (ii) any violation or allegedviolation of any Environmental Law, and shall include any claim seekingdamages, contribution, indemnification, cost recovery, compensation orinjunctive relief resulting from, related to or arising out of the presence, Releaseor threatened Release of Hazardous Material or alleged injury or threat ofinjury to health, safety or the Environment.

“**Environmental Law**”shall mean any and all present and future treaties, laws, statutes, ordinances,regulations, rules, decrees, orders, judgments, consent orders, consentdecrees, code or other binding requirements, and the common law, relating toprotection of public health or the Environment, the Release or threatenedRelease of Hazardous Material, natural resources or natural resource damages,or occupational safety or health, and any and all Environmental Permits.

“**Environmental Permit**”shall mean any permit, license, approval, registration, notification,exemption, consent or other authorization required by or from a GovernmentalAuthority under Environmental Law.

“**Equipment**”shall have the meaning assigned to such term in the Security Agreement.

“**Equity Interest**”shall mean, with respect to any person, any and all shares, interests, participationsor other equivalents, including membership interests (however designated,whether voting or nonvoting), of equity of such person, including, if suchperson is a partnership, partnership interests (whether general or limited) andany other interest or participation that confers on a person the right toreceive a share of the profits and losses of, or distributions of property of,such partnership, whether outstanding on the date hereof or issued after theClosing Date, but excluding debt securities convertible or exchangeable intosuch equity.

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“**ERISA**” shallmean the Employee Retirement Income Security Act of 1974, as the same may beamended from time to time.

“**ERISA Affiliate**”shall mean, with respect to any person, any trade or business (whether or notincorporated) that, together with such person, is treated as a single employerunder Section 414 of the Code.

“**ERISA Event**”shall mean (a) any “reportable event,” as defined in Section 4043 ofERISA or the regulations issued thereunder, with respect to a Plan (other than anevent for which the 30-day notice period is waived by regulation); (b) theexistence with respect to any Plan of an “accumulated funding deficiency” (asdefined in Section 412 of the Code or Section 302 of ERISA), whetheror not waived; (c) the failure to make by its due date a required installmentunder Section 412(m) of the Code with respect to any Plan or the failureto make any required contribution to a Multiemployer Plan; (d) the filingpursuant to Section 412(d) of the Code or Section 303(d) of ERISA ofan application for a waiver of the minimum funding standard with respect to anyPlan; (e) the incurrence by any Company or any of its ERISA Affiliates ofany liability under Title IV of ERISA with respect to the termination of anyPlan; (f) the receipt by any Company or any of its ERISA Affiliates fromthe PBGC or a plan administrator of any notice relating to the intention toterminate any Plan or Plans or to appoint a trustee to administer any Plan, orthe occurrence of any event or condition which could reasonably be expected toconstitute grounds under ERISA for the termination of, or the appointment of atrustee to administer, any Plan; (g) the incurrence by any Company or anyof its ERISA Affiliates of any liability with respect to the withdrawal fromany Plan or Multiemployer Plan; (h) the receipt by any Company or itsERISA Affiliates of any notice, concerning the imposition of WithdrawalLiability or a determination that a Multiemployer Plan is, or is expected tobe, insolvent or in reorganization, within the meaning of Title IV of ERISA;(i) the “substantial cessation of operations” within the meaning ofSection 4062(e) of ERISA with respect to a Plan; (j) the making of anyamendment to any Plan which could result in the imposition of a lien or theposting of a bond or other security; and (k) the occurrence of a nonexemptprohibited transaction (within the meaning of Section 4975 of the Code orSection 406 of ERISA) which could reasonably be expected to result inliability to any Company.

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

“**Eurodollar Loan**”shall mean any Eurodollar Revolving Loan.

“**Eurodollar RevolvingBorrowing**” shall mean a Borrowing comprised of Eurodollar RevolvingLoans.

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

“**Event of Default**”shall have the meaning assigned to such term in Section 8.01.

“**Excess Amount**”shall have the meaning assigned to such term in Section 2.10(c).

“**Exchange Act**”shall mean the Securities Exchange Act of 1934, as amended.

“**Excluded Taxes**”shall mean, with respect to the Administrative Agent, any Lender, the IssuingBank or any other recipient of any payment to be made by or on account of anyobligation of any Borrower hereunder, (a) taxes imposed on or measured byits overall net income (however denominated), franchise taxes imposed on it (inlieu of net income taxes) and branch profits taxes imposed on it, by a 

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jurisdiction (or any political subdivision thereof) asa result of the recipient being organized or having its principal office or, inthe case of any Lender, its applicable lending office in such jurisdiction and(b) in the case of a Foreign Lender, any U.S. federal withholding tax that (i)is imposed on amounts payable to such Foreign Lender at the time such ForeignLender becomes a party hereto (or designates a new lending office), except (x)to the extent that such Foreign Lender (or its assignor, if any) was entitled,at the time of designation of a new lending office (or assignment), to receiveadditional amounts from any Borrower with respect to such withholding taxpursuant to Section 2.15(a) or (y) if such Foreign Lender is an assigneepursuant to a request by a Borrower under Section 2.16; *provided*that this subclause (b)(i) shallnot apply to any Tax imposed on a Lender in connection with an interest orparticipation in any Loan or other obligation that such Lender was required toacquire pursuant to Section 2.14(d),or (ii) is attributable to suchForeign Lender’s failure to comply with Section 2.15(e).

“**Executive Order**” shall have the meaning assigned to suchterm in Section 3.21.

**“Existing Intercompany Loan”**shallmean, on any date of determination, that portion of any loan or advance made bythe US Borrower to the Cayman Borrower prior to the Closing Date which is setforth on Schedule 4.02(e) that remains outstanding on such date ofdetermination (expressly excluding any refinancings thereof).

“**Existing Lien**”shall have the meaning assigned to such term in Section 6.02(c).

“**Federal Funds EffectiveRate**” shall mean, for any day, the weighted average of the rates onovernight federal funds transactions with members of the Federal Reserve Systemof the United States arranged by federal funds brokers, as published on thenext succeeding Business Day by the Federal Reserve Bank of New York, or, ifsuch rate is not so published for any day that is a Business Day, the average ofthe quotations for the day for such transactions received by the AdministrativeAgent from three federal funds brokers of recognized standing selected by it.

**“Fee Letter”**shall have themeaning assigned to such term in the Engagement Letter.

“**Fees**” shallmean the Commitment Fees, the Administrative Agent Fees, the LC ParticipationFees and the Fronting Fees.

“**Final Maturity Date**”shall mean September 17, 2011 (or, if such date is not a Business Day, thefirst Business Day thereafter).

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

“**FIRREA**” shallmean the Federal Institutions Reform, Recovery and Enforcement Act of 1989, asamended.

“**Foreign GuaranteedObligations**” shall have the meaning assigned to such term in Section 7.01(a).

“**Foreign Guarantor**” shall mean IrishSciele, Netherlands Sciele and Cyprus Sciele and any other Person that is organizedunder the laws of a jurisdiction other than the United States or any statethereof or the District of Columbia that is or becomes a party to thisAgreement pursuant to Section 5.11 and which provides a guaranteepursuant to Section 7.01(a).

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“**Foreign Lender**”shall mean any Lender that is not, for United States federal income taxpurposes, (i) an individual who is a citizen or resident of the UnitedStates, (ii) a corporation, partnership or other entity treated as acorporation or partnership created or organized in or under the laws of theUnited States, or any political subdivision thereof, (iii) an estate whoseincome is subject to U.S. federal income taxation regardless of its source or(iv) a trust if a court within the United States is able to exerciseprimary supervision over the administration of such trust and one or moreUnited States persons have the authority to control all substantial decisionsof such trust.

“**Foreign Loan Parties**” shall mean theCayman Borrower and the Foreign Guarantors.

“**Foreign Plan**”shall mean any employee benefit plan, program, policy, arrangement or agreementmaintained or contributed to by any Company with respect to employees employedoutside the United States.

“**Foreign Subsidiary**”shall mean a Subsidiary that is organized under the laws of a jurisdictionother than the United States or any state thereof or the District of Columbia.

“**Fronting Fee**”shall have the meaning assigned to such term in Section 2.05(c).

“**Fund**” shallmean any person that is (or will be) engaged in making, purchasing, holding orotherwise investing in commercial loans and similar extensions of credit in theordinary course of its business.

“**GAAP**” shallmean generally accepted accounting principles in the United States applied on aconsistent basis.

“**Governmental Authority**”shall mean the government of the United States, Cayman Islands or any othernation, or of any political subdivision thereof, whether state, provincial orlocal, and any agency, authority, instrumentality, regulatory body, court,central bank or other entity exercising executive, legislative, judicial,taxing, regulatory or administrative powers or functions of or pertaining togovernment (including any supra-national bodies such as the European Union orthe European Central Bank).

“**Governmental Real PropertyDisclosure Requirements**” shall mean any Requirement of Law of anyGovernmental Authority requiring notification of the buyer, lessee, mortgagee,assignee or other transferee of any Real Property, facility, establishment orbusiness, or notification, registration or filing to or with any GovernmentalAuthority, in connection with the sale, lease, mortgage, assignment or othertransfer (including any transfer of control) of any Real Property, facility,establishment or business, of the actual or threatened presence or Release inor into the Environment, or the use, disposal or handling of Hazardous Materialon, at, under or near the Real Property, facility, establishment or business tobe sold, leased, mortgaged, assigned or transferred.

“**Guaranteed Obligations**”shall have the meaning assigned to such term in Section 7.01(b).

“**Guarantees**”shall mean the guarantees issued pursuant to Article VII by theGuarantors.

“**Guarantors**”shall mean Foreign Guarantors and Domestic Guarantors; and “**Guarantor**” shall mean any one of them.

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“**Hazardous Materials**”shall mean the following:  hazardoussubstances; hazardous wastes; polychlorinated biphenyls (“**PCBs**”)or any substance or compound containing PCBs; asbestos or anyasbestos-containing materials in any form or condition; radon or any otherradioactive materials including any source, special nuclear or by-productmaterial; petroleum, crude oil or any fraction thereof; and any other pollutantor contaminant or chemicals, wastes, materials, compounds, constituents or substances,subject to regulation or which can give rise to liability under any EnvironmentalLaws.

“**Hedging Agreement**”shall mean any swap, cap, collar, forward purchase or similar agreements or arrangementsdealing with interest rates, currency exchange rates or commodity prices,either generally or under specific contingencies.

“**Hedging Obligations**”shall mean obligations under or with respect to Hedging Agreements.

“**Increase Effective Date**”shall have the meaning assigned to such term in Section 2.19(a).

“**Increase Joinder**”shall have the meaning assigned to such term in Section 2.19(c).

“**Indebtedness**”of any person shall mean, without duplication, (a) all obligations of suchperson for borrowed money or advances; (b) all obligations of such personevidenced by bonds, debentures, notes or similar instruments; (c) allobligations of such person upon which interest charges are customarily paid oraccrued; (d) all obligations of such person under conditional sale orother title retention agreements relating to property purchased by such person;(e) all obligations of such person issued or assumed as the deferredpurchase price of property or services (excluding trade accounts payable and accruedobligations incurred in the ordinary course of business on normal trade termsand not overdue by more than 90 days); (f) all Indebtedness of otherssecured by any Lien on property owned or acquired by such person, whether ornot the obligations secured thereby have been assumed, but limited to the fairmarket value of such property; (g) all Capital Lease Obligations, PurchaseMoney Obligations and synthetic lease obligations of such person; (h) allHedging Obligations to the extent required to be reflected on a balance sheetof such person; (i) all Attributable Indebtedness of such person;(j) all obligations of such person for the reimbursement of any obligor inrespect of letters of credit, letters of guaranty, bankers’ acceptances andsimilar credit transactions; and (k) all Contingent Obligations of suchperson in respect of Indebtedness or obligations of others of the kindsreferred to in clauses (a) through (j) above.  The Indebtedness of any person shall includethe Indebtedness of any other entity (including any partnership in which suchperson is a general partner) to the extent such person is liable therefor as aresult of such person’s ownership interest in or other relationship with suchentity, except (other than in the case of general partner liability) to theextent that terms of such Indebtedness expressly provide that such person isnot liable therefor.

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

“**Indemnitee**”shall mean the Administrative Agent (and any sub-agent thereof), the CollateralAgent (and any sub-agent thereof) each Lender and the Issuing Bank, and each RelatedParty of any of the foregoing persons.

“**Information**”shall have the meaning assigned to such term in Section 10.12.

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“**Insurance Policies**”shall mean the insurance policies and coverages required to be maintained byeach Loan Party which is an owner of Mortgaged Property with respect to theapplicable Mortgaged Property pursuant to Section 5.04 and allrenewals and extensions thereof.

“**Insurance Requirements**”shall mean, collectively, all provisions of the Insurance Policies, all requirementsof the issuer of any of the Insurance Policies and all orders, rules,regulations and any other requirements of the National Board of FireUnderwriters (or any other body exercising similar functions) binding upon eachLoan Party which is an owner of Mortgaged Property and applicable to theMortgaged Property or any use or condition thereof.

“**Intellectual Property**”shall mean any patent, patent application, trademark, trade name, service mark,copyright, technology, trade secret, proprietary information, domain name,know-how and process, and any license or distribution agreements with, or covenantsnot to sue, any other party with respect to any of the foregoing.

“**Intercompany Note**”shall mean a promissory note substantially in the form of Exhibit P.

“**Interest Election Request**”shall mean a request by a Borrower to convert or continue a Revolving Borrowingin accordance with Section 2.08(b), substantially in the form of Exhibit E.

“**Interest Payment Date**”shall mean (a) with respect to any ABR Revolving Loan (including SwinglineLoans), the last Business Day of each March, June, September and December tooccur during any period in which such Loan is outstanding, (b) withrespect to any Eurodollar Loan, the last day of the Interest Period applicableto the Borrowing of which such Loan is a part and, in the case of a EurodollarLoan with an Interest Period of more than three months’ duration, each dayprior to the last day of such Interest Period that occurs at intervals of threemonths’ duration after the first day of such Interest Period, and (c) theFinal Maturity Date or such earlier date on which the Revolving Commitments areterminated.

“**Interest Period**”shall mean, with respect to any Eurodollar Borrowing, the period commencing onthe date of such Borrowing and ending on the numerically corresponding day inthe calendar month that is one, two, three or six months (or, if each affectedLender so agrees, nine months) thereafter, as the relevant Borrower may elect; *provided* that (a) if any Interest Period would end on aday other than a Business Day, such Interest Period shall be extended to thenext succeeding Business Day unless such next succeeding Business Day wouldfall in the next calendar month, in which case such Interest Period shall endon the next preceding Business Day, and (b) any Interest Period thatcommences on the last Business Day of a calendar month (or on a day for whichthere is no numerically corresponding day in the last calendar month of suchInterest Period) shall end on the last Business Day of the last calendar monthof such Interest Period.  For purposeshereof, the date of a Borrowing initially shall be the date on which suchBorrowing is made and thereafter shall be the effective date of the most recentconversion or continuation of such Borrowing.

“**Investments**”shall have the meaning assigned to such term in Section 6.04.

“**Irish Sciele”**shall mean Sciele Pharma Ireland, Ltd., an entity organized under the laws ofIreland.

 

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“**Issuing Bank**”shall mean, as the context may require, (a) UBS AG, Stamford Branch, inits capacity as issuer of Letters of Credit issued by it; (b) any otherLender that may become an Issuing Bank pursuant to Sections 2.18(A)(j)and (k) and Sections 2.18(B)(j) and (k) in itscapacity as an issuer of Letters of Credit issued by such Lender; or(c) collectively, all of the foregoing.

“**Joinder Agreement**”shall mean a joinder agreement substantially in the form of Exhibit F.

“**Landlord Access Agreement**”shall mean a Landlord Lien Waiver, Access Agreement and Consent, substantiallyin the form of Exhibit G, or such other form as may reasonably beacceptable to the Administrative Agent.

“**LC Commitment**”shall mean the commitment of the Issuing Bank to issue Letters of Credit pursuantto Section 2.18.  The amountof the LC Commitment shall initially be $5,000,000, but in no event exceed theRevolving Commitment.

“**LC Disbursement**”shall mean a payment or disbursement made by the Issuing Bank pursuant to adrawing under a Letter of Credit.

“**LC Exposure**”shall mean at any time the sum of (a) the aggregate undrawn amount of alloutstanding Letters of Credit at such time *plus*(b) the aggregate principal amount of all Reimbursement Obligationsoutstanding at such time.  The LC Exposureof any Revolving Lender at any time shall mean its Pro Rata Percentage of theaggregate LC Exposure at such time.

“**Leases**” shallmean any and all leases, subleases, tenancies, options, concession agreements,rental agreements, occupancy agreements, franchise agreements, accessagreements and any other agreements (including all amendments, extensions,replacements, renewals, modifications and/or guarantees thereof), whether ornot of record and whether now in existence or hereafter entered into, affectingthe use or occupancy of all or any portion of any Real Property.

“**Lender Addendum**”shall mean with respect to any Lender on the Closing Date, a lender addendum inthe form of Exhibit I, to be executed and delivered by such Lenderon the Closing Date as provided in Section 10.15.

“**Lenders**” shallmean (a) the financial institutions that have become a party hereto pursuantto a Lender Addendum and (b) any financial institution that has become aparty hereto pursuant to an Assignment and Assumption, other than, in eachcase, any such financial institution that has ceased to be a party heretopursuant to an Assignment and Assumption. Unless the context clearly indicates otherwise, the term “Lenders” shallinclude the Swingline Lender.

“**Letter of Credit**”shall mean  Cayman Letters of Credit andUS Letters of Credit, or any one of them.

“**Letter of CreditExpiration Date**” shall mean the date which is fifteen days prior tothe Final Maturity Date.

“**LIBOR Rate**”shall mean, with respect to any Eurodollar Borrowing for any Interest Period,the rate per annum determined by the Administrative Agent to be the arithmeticmean of the offered rates for deposits in dollars with a term comparable tosuch Interest Period that appears on the Page BBAM (as defined below) atapproximately 11:00 a.m., London, England time, on the second full 

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Business Day preceding the first day of such InterestPeriod; *provided*,*however*,that (i) if no comparable term for an Interest Period is available, theLIBOR Rate shall be determined using the weighted average of the offered ratesfor the two terms most nearly corresponding to such Interest Period and(ii) if there shall at any time no longer exist a Page BBAM, “LIBOR Rate”shall mean, with respect to each day during each Interest Period pertaining toEurodollar Borrowings comprising part of the same Borrowing, the rate per annumequal to the rate at which the Administrative Agent is offered deposits indollars at approximately 11:00 a.m., London, England time, two Business Daysprior to the first day of such Interest Period in the London interbank marketfor delivery on the first day of such Interest Period for the number of days comprisedtherein and in an amount comparable to its portion of the amount of suchEurodollar Borrowing to be outstanding during such Interest Period**.  “Page BBAM”** shallmean the display designated as Page BBAM on the Bloomberg Terminal (or suchother page as may replace such page on such service for the purpose ofdisplaying the rates at which dollar deposits are offered by leading banks inthe London interbank deposit market).

“**Lien**” shallmean, with respect to any property, (a) any mortgage, deed of trust, lien,pledge, encumbrance, claim, charge, assignment, hypothecation, securityinterest or encumbrance of any kind or any arrangement to provide priority orpreference or any filing of any financing statement under the UCC or any othersimilar notice of lien under any similar notice or recording statute of anyGovernmental Authority, including any easement, right-of-way or otherencumbrance on title to Real Property, in each of the foregoing cases whethervoluntary or imposed by law, and any agreement to give any of the foregoing;(b) the interest of a vendor or a lessor under any conditional saleagreement, capital lease or title retention agreement (or any financing leasehaving substantially the same economic effect as any of the foregoing) relatingto such property; and (c) in the case of securities, any purchase option,call or similar right of a third party with respect to such securities.

“**Loan Documents**”shall mean this Agreement, the Letters of Credit, the Notes (if any), theEngagement Letter, the Fee Letters and the Security Documents.

“**Loan Parties**”shall mean the Domestic Loan Parties and the Foreign Loan Parties; and “**Loan Party**” shall mean any one of them.

“**Loan**” shallmean, as the context may require, a Revolving Loan or a Swingline Loan.

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

“**Material Adverse Effect**”shall mean (a) a material adverse effect on the business, property,results of operations, prospects or condition, financial or otherwise, ormaterial agreements of the US Borrower and its Subsidiaries, taken as a whole;(b) material impairment of the ability of the Loan Parties to fully andtimely perform any of their obligations under any Loan Document;(c) material impairment of the rights of or benefits or remedies availableto the Lenders or the Collateral Agent under any Loan Document other than thoseimpairments which result solely from any act or omission of the Lenders or theAgents; or (d) a material adverse effect on the Collateral or the Liens infavor of the Collateral Agent (for its benefit and for the benefit of the otherSecured Parties) on the Collateral or the priority of such Liens.

“**Maximum Rate**”shall have the meaning assigned to such term in Section 10.14.

“**Mortgage**” shallmean an agreement, including, but not limited to, a mortgage, deed of trust orany other document, creating and evidencing a Lien on a Mortgaged Property,which shall be 

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substantially in the form of Exhibit J orother form reasonably satisfactory to the Collateral Agent, in each case, withsuch schedules and including such provisions as shall be necessary to conformsuch document to applicable local or foreign law or as shall be customary underapplicable local or foreign law.

“**Mortgaged Property**”shall mean (a) each Real Property identified as a Mortgaged Property on Schedule 8(a)to the Perfection Certificate dated the Closing Date and (b) each Real Property,if any, which shall be subject to a Mortgage delivered after the Closing Datepursuant to Section 5.11(c).

“**Multiemployer Plan**”shall mean a multiemployer plan within the meaning of Section 4001(a)(3)or Section 3(37) of ERISA (a) to which any Company or any ERISA Affiliateis then making or accruing an obligation to make contributions; (b) towhich any Company or any ERISA Affiliate has within the preceding five planyears made contributions; or (c) with respect to which any Company couldincur liability.

“**Net Working Capital**”shall mean, at any time, Consolidated Current Assets at such time minus ConsolidatedCurrent Liabilities at such time.

“**Netherlands Sciele”**shall mean First Horizon Pharmaceutical B.V, an entity organized under the lawsof The Netherlands (to be renamed Sciele Pharma B.V.).

“**Notes**”shall mean Cayman Notes and US Notes, or any one of them.

“**Obligations**”shall mean Cayman Obligations and US Obligations.

“**OFAC**” shallhave the meaning assigned to such term in Section 3.21.

“**Officers’ Certificate**”shall mean a certificate executed by the chairman of the Board of Directors (ifan officer), the chief executive officer or the president and one of theFinancial Officers, each in his or her official (and not individual) capacity.

“**Organizational Documents**”shall mean, with respect to any person, (i) in the case of any corporation,the certificate of incorporation and by-laws (or similar documents) of suchperson, (ii) in the case of any limited liability company, the certificateof formation and operating agreement (or similar documents) of such person,(iii) in the case of any limited partnership, the certificate of formationand limited partnership agreement (or similar documents) of such person,(iv) in the case of any general partnership, the partnership agreement (orsimilar document) of such person and (v) in any other case, the functionalequivalent of the foregoing.

“**Other Taxes**”shall mean all present or future stamp or documentary taxes or any other exciseor property taxes, charges or similar levies arising from any payment made hereunderor under any other Loan Document or from the execution, delivery or enforcementof, or otherwise with respect to, this Agreement or any other Loan Document.

“**Participant**”shall have the meaning assigned to such term in Section 10.04(d).

“**PBGC**” shallmean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

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“**Perfection Certificate**”shall mean a certificate in the form of Exhibit L-1 or any other formapproved by the Collateral Agent, as the same shall be supplemented from timeto time by a Perfection Certificate Supplement or otherwise.

“**Perfection CertificateSupplement**” shall mean a certificate supplement in the form of Exhibit L-2or any other form approved by the Collateral Agent.

“**Permitted Acquisition**”shall mean any transaction or series of related transactions for the direct orindirect (a) license or acquisition of specific Intellectual Property ofany person and related contract rights (each, an **“IPAcquisition”**); (b) acquisition of all or substantially all of theproperty of any person, or of any business or division of any person;(c) acquisition of more than 50% of the Equity Interests of any person orotherwise causing such person to become a Subsidiary of such person; or(d) merger or consolidation or any other combination with any person, ineach of the foregoing cases, if each of the following conditions is met:

(i)    ** **noDefault then exists or would result therefrom;

(ii)    ** **aftergiving effect to such transaction on a Pro Forma Basis, the Borrowers shall bein compliance with Section 3.12 and all covenants set forth in Section 6.10as of the most recent Test Period (assuming, for purposes of Section 6.10,that such transaction, and all other Permitted Acquisitions consummated sincethe first day of the relevant Test Period for each of the financial covenantsset forth in Section 6.10 ending on or prior to the date of suchtransaction, had occurred on the first day of such relevant Test Period);

(iii)   ** **no Company shall, in connection with any suchtransaction, assume or remain liable with respect to any Indebtedness or otherliability (including any material tax or ERISA liability) of the related selleror the business, person or properties acquired, except (A) to the extentpermitted under Section 6.01 and (B) obligations notconstituting Indebtedness incurred in the ordinary course of business andnecessary or desirable to the continued operation of the underlying properties,and any other such liabilities or obligations not permitted to be assumed orotherwise supported by any Company hereunder shall be paid in full or releasedas to the business, persons or properties being so acquired on or before theconsummation of such acquisition;

(iv)   ** **the person or business to be acquired (if applicable)shall be, or shall be engaged in, a business of the type that the Borrowers andthe Subsidiaries are permitted to be engaged in under Section 6.15and the property licensed or acquired in connection with any such transactionshall be free and clear of any Liens other than Permitted Collateral Liens and,except to the extent expressly precluded by the terms of any license ofIntellectual Property included in such transaction, which shall be excluded frombeing subject to a Lien under the applicable Security Document only the extentprovided in such Security Document, the Collateral Agent will have a perfectedLien on and security interest in such property;

(v)   ** **such transaction shall be consensual and, except inthe case of an IP Acquisition, the Board of Directors of the person to beacquired shall have approved such transaction and shall not have indicatedpublicly its opposition to the consummation of such acquisition (whichopposition has not been publicly withdrawn);

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(vi)          all transactions in connectiontherewith shall be consummated in accordance with all applicable Requirementsof Law;

(vii)         with respect to any transactioninvolving Acquisition Consideration of more than $50.0 million or with respectto which any Company would otherwise be required to file a report on Form 8-Kwith the Securities and Exchange Commission, the Borrowers shall have providedthe Administrative Agent and the Lenders with (A) except in the case of anIP Acquisition, historical financial statements for the last three fiscal years(or, if less, the number of years since formation) of the person or business tobe acquired (audited if available without undue cost or delay) and unauditedfinancial statements thereof for the most recent interim period which areavailable, (B) reasonably detailed projections for the succeeding fiveyears pertaining to the person or business to be acquired (if applicable) andupdated projections for the Borrowers after giving effect to such transaction,(C) a reasonably detailed description of all material information relatingthereto and copies of all material documentation pertaining to suchtransaction, and (D) all such other information and data relating to suchtransaction or the Intellectual Property, person or business to be licensed oracquired as may be reasonably requested by the Administrative Agent or theRequired Lenders; and

(viii)        (A) with respect to any transactioninvolving Acquisition Consideration of more than $50.0 million or with respectto which any Company would otherwise be required to file a report on Form 8-Kwith the Securities and Exchange Commission, at least 3 Business Days prior tothe proposed date of consummation of the transaction, the Borrowers shall havedelivered to the Agents and the Lenders an Officers’ Certificate certifyingthat (1) such transaction complies with this definition and otherwise withthe provisions of Section 6.07 (which shall have attached thereto reasonablydetailed backup data and calculations showing such compliance), and(2) such transaction could not reasonably be expected to result in aMaterial Adverse Effect; and

(B) with respect to anyother transaction, at least 3 Business Days prior to the proposed date ofconsummation of the transaction, the Borrowers shall have delivered to theAgents and the Lenders a written description of the person, business or assetsto be licensed or acquired and an Officer’s Certificate certifying that uponconsummation, the Collateral Agent will have a perfected Lien on and securityinterest in such assets under the Security Documents in accordance with theprovisions of Section 5.11 or Section 5.12, asapplicable, except to the extent precluded by the terms of any IntellectualProperty licenses, which shall be excluded from being subject to a Lien underthe applicable Security Document only the extent provided in such SecurityDocument.

“**Permitted Collateral Liens**”means (a) in the case of Collateral other than Mortgaged Property, the Liensdescribed in clauses (a), (b), (c), (d), (e), (f), (g), (h), (j), (k), (l), (m)and (n) of Section 6.02 and (b) in the case of Mortgaged Property, “PermittedCollateral Liens” shall mean the Liens described in clauses (a), (b), (d), (e),(g) and (l) of Section 6.02; *provided*, *however*, on the Closing Date or upon the date of delivery ofeach additional Mortgage under Section 5.11 or 5.12,Permitted Collateral Liens shall mean only those Liens set forth in Schedule Bto the applicable Mortgage.

“**Permitted Liens**”shall have the meaning assigned to such term in Section 6.02.

“**person**” shallmean any natural person, corporation, limited liability company, trust, jointventure, association, company, partnership, Governmental Authority or otherentity.

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“**Plan**” shallmean any employee pension benefit plan (other than a Multiemployer Plan)subject to the provisions of Title IV of ERISA or Section 412 of the Codeor Section 302 of ERISA which is maintained or contributed to by anyCompany or its ERISA Affiliate or with respect to which any Company could incurliability (including under Section 4069 of ERISA).

“**Post-Increase RevolvingLenders**” shall have the meaning assigned to such term in Section2.19(d).

“**Pre-Increase RevolvingLenders**” shall have the meaning assigned to such term in Section2.19(d).

“**Preferred Stock**”shall mean, with respect to any person, any and all preferred or preferenceEquity Interests (however designated) of such person whether now outstanding orissued after the Closing Date.

“**Preferred Stock Issuance**”shall mean the issuance or sale by the US Borrower or any of its Subsidiaries(including, without limitation, the Cayman Borrower) of any Preferred Stockafter the Closing Date (other than as permitted by Section 6.01).

“**Premises**” shallhave the meaning assigned thereto in the applicable Mortgage.

“**Pro Forma Basis**”shall mean on a basis in accordance with GAAP and Regulation S-X and otherwisereasonably satisfactory to the Administrative Agent.

“**Pro Rata Percentage**”of any Revolving Lender at any time shall mean the percentage of the total RevolvingCommitments of all Revolving Lenders represented by such Lender’s RevolvingCommitment.

“**property**” shallmean any right, title or interest in or to property or assets of any kind whatsoever,whether real, personal or mixed and whether tangible or intangible andincluding Equity Interests or other ownership interests of any person andwhether now in existence or owned or hereafter entered into or acquired,including all Real Property.

“**Property Material AdverseEffect**” shall have the meaning assigned thereto in the Mortgage.

“**Purchase Money Obligation**”shall mean, for any person, the obligations of such person in respect ofIndebtedness (including Capital Lease Obligations) incurred for the purpose offinancing all or any part of the purchase price of any property (includingEquity Interests of any person) or the cost of installation, construction orimprovement of any property and any refinancing thereof; *provided*,*however*, that (i) such Indebtedness is incurred within oneyear after such acquisition, installation, construction or improvement of suchproperty by such person and (ii) the amount of such Indebtedness does notexceed 100% of the cost of such acquisition, installation, construction orimprovement, as the case may be.

“**Qualified Capital Stock**”of any person shall mean any Equity Interests of such person that are not DisqualifiedCapital Stock.

“**Real Property**”shall mean, collectively, all right, title and interest (including anyleasehold, mineral or other estate) in and to any and all parcels of orinterests in real property owned, 

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leased or operated by any person, whether by lease,license or other means, together with, in each case, all easements,hereditaments and appurtenances relating thereto, all improvements andappurtenant fixtures and equipment, all general intangibles and contract rightsand other property and rights incidental to the ownership, lease or operationthereof.

“**Refinancing**”shall mean the repayment in full and the termination of any commitment to makeextensions of credit under all of the outstanding indebtedness listed on Schedule 1.01(a)of the US Borrower or any of its Subsidiaries.

“**Register**” shallhave the meaning assigned to such term in Section 10.04(c).

“**Regulation D**”shall mean Regulation D of the Board as from time to time in effect and allofficial rulings and interpretations thereunder or thereof.

“**Regulation S-X**”shall mean Regulation S-X promulgated under the Securities Act.

“**Regulation T**” shallmean Regulation T of the Board as from time to time in effect and all officialrulings and interpretations thereunder or thereof.

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

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

“**ReimbursementObligations**” shall mean Cayman Reimbursement Obligations and USReimbursement Obligations.

“**Related Parties**”shall mean, with respect to any person, such person’s Affiliates and thepartners, directors, officers, employees, agents and advisors of such personand of such person’s Affiliates.

“**Release**” shallmean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging,injecting, escaping, leaching, dumping, disposing, depositing, dispersing,emanating or migrating of any Hazardous Material in, into, onto or through theEnvironment.

“**Required Class Lenders**”shall mean with respect to Revolving Loans, Required Revolving Lenders.

“**Required Lenders**”shall mean Lenders having more than 50% of the sum of all Loans outstanding, LCExposure and unused Revolving Commitments, in the aggregate.

“**Required Revolving Lenders**”shall mean Lenders having more than 50% of all Revolving Commitments or, afterthe Revolving Commitments have terminated, more than 50% of all Revolving Exposure,in the aggregate.

“**Requirements of Law**”shall mean, collectively, any and all requirements of any Governmental Authorityincluding any and all laws, judgments, orders, decrees, ordinances, rules,regulations, statutes or case law.

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“**Response**” shallmean (a) ”response” as such term is defined in CERCLA, 42 U.S.C.§ 9601(24), and (b) all other actions required by any GovernmentalAuthority or voluntarily undertaken to (i) clean up, remove, treat, abateor in any other way address any Hazardous Material in the Environment;(ii) prevent the Release or threat of Release, or minimize the furtherRelease, of any Hazardous Material; or (iii) perform studies andinvestigations in connection with, or as a precondition to, or to determine thenecessity of the activities described in, clause (i) or (ii) above.

“**Responsible Officer**”of any person shall mean any executive officer or Financial Officer of suchperson and any other officer or similar official thereof with responsibilityfor the administration of the obligations of such person in respect of thisAgreement.

“**Revolving Availability Period**”shall mean the period from and including the Closing Date to but excluding theearlier of (i) the Business Day preceding the Final Maturity Date and(ii) the date of termination of the Revolving Commitments.

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

“**Revolving Commitment**”shall mean, with respect to each Lender, the commitment, if any, of such Lenderto make Revolving Loans hereunder up to the amount set forth on Schedule Ito the Lender Addendum executed and delivered by such Lender or by an IncreaseJoinder, or in the Assignment and Assumption pursuant to which such Lenderassumed its Revolving Commitment, as applicable, as the same may be(a) reduced from time to time pursuant to Section 2.07 and(b) reduced or increased from time to time pursuant to assignments by orto such Lender pursuant to Section 10.04.  The aggregate amount of the Lenders’Revolving Commitments on the Closing Date is $100.0 million.

“**Revolving Exposure**”shall mean, with respect to any Lender at any time, the aggregate principalamount at such time of all outstanding Revolving Loans of such Lender, *plus* the aggregate amount at such time of such Lender’s LCExposure, *plus* the aggregate amount at such timeof such Lender’s Swingline Exposure.

“**Revolving Lender**”shall mean a Lender with a Revolving Commitment.

“**Revolving Loan**”shall mean a Cayman Revolving Loan and a US Revolving Loan, or either of them.

“**Sale and LeasebackTransaction**” has the meaning assigned to such term in Section 6.03.

“**Sarbanes-Oxley Act**”shall mean the United States Sarbanes-Oxley Act of 2002, as amended, and allrules and regulations promulgated thereunder.

“**Sciele Sales**”****shall mean Sciele Pharma Sales, Inc., a Delaware corporation.

“**Secured Cayman Obligations**”shall mean (a) the Cayman Obligations, (b) the due and punctual payment andperformance of all obligations of the Cayman Borrower and the other ForeignLoan Parties under each Hedging Agreement entered into with any counterpartythat is a Secured Party and (c) the due and punctual payment and performanceof all obligations of the Cayman Borrower and the other Foreign Loan Parties(including overdrafts and related liabilities) under each Treasury ServicesAgreement entered into with any counterparty that is a Secured Party.

 

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“**Secured Obligations**”shall mean the Secured Cayman Obligations and the Secured US Obligations.

“**Secured Parties**”shall mean, collectively, the Administrative Agent, the Collateral Agent, eachother Agent, the Lenders and each counterparty to a Hedging Agreement orTreasury Services Agreement if at the date of entering into such HedgingAgreement or Treasury Services Agreement such person was a Lender or anAffiliate of a Lender and such person executes and delivers to the AdministrativeAgent a letter agreement in form and substance acceptable to the AdministrativeAgent pursuant to which such person (i) appoints the Collateral Agent asits agent under the applicable Loan Documents and (ii) agrees to be boundby the provisions of Sections 10.03 and 10.09 as if it werea Lender.

“**Secured US Obligations**”shall mean (a) the US Obligations, (b) the due and punctual payment andperformance of all obligations of the US Borrower and the other Domestic LoanParties under each Hedging Agreement entered into with any counterparty that isa Secured Party and (c) the due and punctual payment and performance ofall obligations of the US Borrower and the other Domestic Loan Parties(including overdrafts and related liabilities) under each Treasury ServicesAgreement entered into with any counterparty that is a Secured Party.

“**Securities Act**”shall mean the Securities Act of 1933, as amended.

“**Securities Collateral**”shall have the meaning assigned to such term in the Security Agreement.

“**Security Agreement**”shall mean a Security Agreement substantially in the form of Exhibit Mamong the Domestic Loan Parties and Collateral Agent for the benefit of theSecured Parties.

“**Security AgreementCollateral**” shall mean all property pledged or granted as collateralpursuant to the Security Agreement (a) on the Closing Date or (b) thereafterpursuant to Section 5.11.

“**Security Documents**”shall mean the Security Agreement, the Mortgages, the Cayman Share Charge, theCayman Deed of Charge, the Cayman Security Agreement and each other securitydocument or pledge agreement delivered in accordance with applicable local orforeign law to grant a valid, perfected security interest in any property ascollateral for the Secured Obligations, and all UCC or other financingstatements or instruments of perfection required by this Agreement, theSecurity Agreement, any Mortgage or any other such security document or pledgeagreement to be filed with respect to the security interests in property andfixtures created pursuant to the Security Agreement or any Mortgage and anyother document or instrument utilized to pledge or grant or purport to pledgeor grant a security interest or lien on any property as collateral for theSecured Obligations.

“**Seller**” shallhave the meaning assigned to such term in the first recital hereto.

“**Standby Letter of Credit**”shall mean any standby letter of credit or similar instrument issued for thepurpose of supporting (a) workers’ compensation liabilities of a Borroweror any of its Subsidiaries, (b) the obligations of third-party insurers ofa Borrower or any of its Subsidiaries arising by virtue of the laws of anyjurisdiction requiring third-party insurers to obtain such letters of credit,(c) performance, payment, deposit or surety obligations of a Borrower orany of its Subsidiaries if 

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required by a Requirement of Law or in accordance withcustom and practice in the industry or (d) Indebtedness of a Borrower orany of its Subsidiaries permitted to be incurred under Section 6.01.

“**Statutory Reserves**”shall mean for any Interest Period for any Eurodollar Borrowing, the averagemaximum rate at which reserves (including any marginal, supplemental oremergency reserves) are required to be maintained during such Interest Periodunder Regulation D by member banks of the United States Federal Reserve Systemin New York City with deposits exceeding one billion dollars against “Eurocurrencyliabilities” (as such term is used in Regulation D).  Eurodollar Borrowings shall be deemed toconstitute Eurodollar liabilities and to be subject to such reserverequirements without benefit of or credit for proration, exceptions or offsetswhich may be available from time to time to any Lender under Regulation D.

“**Subordinated Indebtedness**”shall mean Indebtedness of a Borrower or any Guarantor that is by its termssubordinated in right of payment to the Obligations of a Borrower and suchGuarantor, as applicable.

“**Subsidiary**”shall mean, with respect to any person (the “**parent**”)at any date, (i) any person the accounts of which would be consolidatedwith those of the parent in the parent’s consolidated financial statements ifsuch financial statements were prepared in accordance with GAAP as of suchdate, (ii) any other corporation, limited liability company, associationor other business entity of which securities or other ownership interestsrepresenting more than 50% of the voting power of all Equity Interests entitled(without regard to the occurrence of any contingency) to vote in the electionof the Board of Directors thereof are, as of such date, owned, controlled orheld by the parent and/or one or more subsidiaries of the parent,(iii) any partnership (a) the sole general partner or the managinggeneral partner of which is the parent and/or one or more subsidiaries of theparent or (b) the only general partners of which are the parent and/or oneor more subsidiaries of the parent and (iv) any other person that isotherwise Controlled by the parent and/or one or more subsidiaries of theparent.  Unless the context requires otherwise,“Subsidiary” refers to a Subsidiary of a Borrower.

“**Survey**” shallmean a survey of any Mortgaged Property (and all improvements thereon) which is(a) (i) prepared by a surveyor or engineer licensed to perform surveys inthe jurisdiction where such Mortgaged Property is located, (ii) dated (orredated) not earlier than six months prior to the date of delivery thereofunless there shall have occurred within six months prior to such date ofdelivery any exterior construction on the site of such Mortgaged Property orany easement, right of way or other interest in the Mortgaged Property has beengranted or become effective through operation of law or otherwise with respectto such Mortgaged Property which, in either case, can be depicted on a survey,in which events, as applicable, such survey shall be dated (or redated) afterthe completion of such construction or if such construction shall not have beencompleted as of such date of delivery, not earlier than 20 days prior tosuch date of delivery, or after the grant or effectiveness of any sucheasement, right of way or other interest in the Mortgaged Property,(iii) certified by the surveyor (in a manner reasonably acceptable to theAdministrative Agent) to the Administrative Agent, the Collateral Agent and theTitle Company, (iv) complying in all respects with the minimum detailrequirements of the American Land Title Association as such requirements are ineffect on the date of preparation of such survey and (v) sufficient forthe Title Company to remove all standard survey exceptions from the titleinsurance policy (or commitment) relating to such Mortgaged Property and issuethe endorsements of the type described in the definition of the term “TitlePolicy” or (b) otherwise acceptable to the Collateral Agent.

“**Swingline Commitment**”shall mean the commitment of the Swingline Lender to make loans pursuant to Section 2.17,as the same may be reduced from time to time pursuant to Section 2.07or 

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Section 2.17.  The amount of the Swingline Commitment shallinitially be $5.0 million, but shall in no event exceed the Revolving Commitment.

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

“**Swingline Lender**”shall have the meaning assigned to such term in the preamble hereto.

“**Swingline Loan**”shall mean a Cayman Swingline Loan and a US Swingline Loan, or either of them.

“**Syndication Agent**”shall have the meaning assigned to such term in the preamble hereto.

“**Tax Return**”shall mean all returns, statements, filings, attachments and other documents orcertifications required to be filed in respect of Taxes.

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

“**Test Period**” shallmean, at any time, the four consecutive fiscal quarters of the US Borrower thenlast ended (in each case taken as one accounting period) for which financialstatements have been or are required to be delivered pursuant to Section 5.01(a)or (b).

“**Title Company**”shall mean any title insurance company as shall be retained by a Borrower andreasonably acceptable to the Administrative Agent.

“**Title Policy**”shall mean a policy of title insurance (or marked up title insurance commitmenthaving the effect of a policy of title insurance) insuring the Lien of suchMortgage as a valid first mortgage Lien on the Mortgaged Property and fixturesdescribed therein in the amount equal to not less than 115% of the fair marketvalue of such Mortgaged Property and fixtures, which policy (or such marked-upcommitment) shall (A) be issued by the Title Company, (B) to theextent necessary, include such reinsurance arrangements (with provisions fordirect access, if necessary) as shall be reasonably acceptable to the CollateralAgent, (C) contain a “tie-in” or “cluster” endorsement, if available underapplicable law (*i.e*., policies which insureagainst losses regardless of location or allocated value of the insuredproperty up to a stated maximum coverage amount), (D) have been supplementedby such endorsements (or where such endorsements are not available, opinions ofspecial counsel, architects or other professionals reasonably acceptable to theCollateral Agent) as shall be reasonably requested by the Collateral Agent(including endorsements on matters relating to usury, first loss, last dollar,zoning, contiguity, revolving credit, doing business, non-imputation, publicroad access, survey, variable rate, environmental lien, subdivision, mortgagerecording tax, separate tax lot, revolving credit, and so-called comprehensivecoverage over covenants and restrictions), and (E) contain no exceptionsto title other than exceptions acceptable to the Collateral Agent.

“**Total Leverage Ratio**”shall mean, at any date of determination, the ratio of ConsolidatedIndebtedness on such date to Consolidated EBITDA for the Test Period then mostrecently ended.

 

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“**Transactions**”shall mean, collectively, the transactions to occur on or prior to the ClosingDate pursuant to the Loan Documents, including (a) the execution, deliveryand performance of the Loan Documents and the initial borrowings hereunder;(b) the Refinancing; and (c) the payment of all fees and expenses tobe paid on or prior to the Closing Date and owing in connection with the foregoing.

“**Transferred Guarantor**”shall have the meaning assigned to such term in Section 7.09.

“**Treasury ServicesAgreement**” shall mean any agreement relating to treasury, depositaryand cash management services or automated clearinghouse transfer of funds.

“**Type**,” whenused in reference to any Loan or Borrowing, refers to whether the rate ofinterest on such Loan, or on the Loans comprising such Borrowing, is determinedby reference to the Adjusted LIBOR Rate or the Alternate Base Rate.

“**UCC**” shall meanthe Uniform Commercial Code as in effect from time to time (except as otherwisespecified) in any applicable state or jurisdiction.

“**United States**”shall mean the United States of America.

“**US Borrower**”shall have the meaning assigned to such term in the preamble hereto.

“**US LC Disbursement**”shall mean a payment or disbursement made by the Issuing Bank pursuant to adrawing under a US Letter of Credit.

“**US LC Exposure**”shall mean at any time the sum of (a) the aggregate undrawn amount of alloutstanding US Letters of Credit at such time *plus*(b) the aggregate principal amount of all US Reimbursement Obligationsoutstanding at such time.  The US LCExposure of any Revolving Lender at any time shall mean its Pro Rata Percentageof the aggregate US LC Exposure at such time.

“**US LC Participation Fee**”shall have the meaning assigned to such term in Section 2.05(d).

“**US LC Request**”shall mean a request by the US Borrower in accordance with the terms of Section 2.18(B)(b)and substantially in the form of Exhibit H-2, or such other form asshall be approved by the Administrative Agent.

“**US Letter of Credit**”shall mean any (i) Standby Letter of Credit and (ii) CommercialLetter of Credit, in each case, issued or to be issued by an Issuing Bank forthe account of the US Borrower pursuant to Section 2.18(B).

“**US Notes**”shall mean any notes evidencing the US Revolving Loans or US Swingline Loansissued pursuant to this Agreement, if any, substantially in the form of Exhibit K-1(B)or K-2(B).

“**US Obligations**”shall mean (a) obligations of the US Borrower and the other Domestic LoanParties from time to time arising under or in respect of the due and punctualpayment of (i) the principal of and premium, if any, and interest(including interest accruing during the pendency of any bankruptcy, insolvency,receivership or other similar proceeding, regardless of whether allowed or allowablein such proceeding) on the US Revolving Loans, when and as due, whether atmaturity, by acceleration, upon one or more dates set for prepayment orotherwise, (ii) each payment required to be made by the US Borrower andthe other Domestic Loan Parties under this Agreement in respect of any 

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US Letter of Credit, when and as due, includingpayments in respect of US Reimbursement Obligations, interest thereon and obligationsto provide cash collateral and (iii) all other monetary obligations,including Guaranteed Obligations and fees, costs, expenses and indemnities,whether primary, secondary, direct, contingent, fixed or otherwise (includingmonetary obligations incurred during the pendency of any bankruptcy,insolvency, receivership or other similar proceeding, regardless of whetherallowed or allowable in such proceeding), of the US Borrower and the otherDomestic Loan Parties under this Agreement and the other Loan Documents, and(b) the due and punctual performance of all covenants, agreements,obligations and liabilities of the US Borrower and the other Domestic LoanParties under or pursuant to this Agreement and the other Loan Documents.

“**US ReimbursementObligations**” shall mean the US Borrower’s obligations under Section 2.18(B)(e)to reimburse US LC Disbursements.

“**US Revolving Loan**”shall mean a Loan made by the Lenders to the US Borrower pursuant to Section 2.01(b).  Each US Revolving Loan shall either be an ABRRevolving Loan or a Eurodollar Revolving Loan.

“**US Revolving Exposure**”shall mean, with respect to any Lender at any time, the aggregate principalamount at such time of all outstanding US Revolving Loans of such Lender, *plus* the aggregate amount at such time of such Lender’s USLC Exposure, *plus* the aggregate amount at suchtime of such Lender’s US Swingline Exposure.

“**US Swingline Exposure**”shall mean at any time the aggregate principal amount at such time of alloutstanding US Swingline Loans.  The USSwingline Exposure of any Revolving Lender at any time shall equal its Pro RataPercentage of the aggregate US Swingline Exposure at such time.

“**US Swingline Loan**”shall mean any loan made by the Swingline Lender pursuant to Section 2.17(b).

“**Voting Stock**”shall mean, with respect to any person, any class or classes of Equity Interestspursuant to which the holders thereof have the general voting power underordinary circumstances to elect at least a majority of the Board of Directorsof such person.

“**Wholly Owned Subsidiary**”shall mean, as to any person, (a) any corporation 100% of whose capitalstock (other than directors’ qualifying shares) is at the time owned by suchperson and/or one or more Wholly Owned Subsidiaries of such person and(b) any partnership, association, joint venture, limited liability companyor other entity in which such person and/or one or more Wholly Owned Subsidiariesof such person have a 100% equity interest at such time.

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

**SECTION 1.02     Classification of Loans andBorrowings**.  For purposesof this Agreement, Loans may be classified and referred to by Class (*e.g*., a “Revolving Loan” or “Swingline Loan”) or byType (*e.g*., a “Eurodollar Loan”) or byClass and Type (*e.g*., a “Eurodollar RevolvingLoan”).

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**SECTION 1.03     Terms Generally**.  The definitions of terms herein shall applyequally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronounshall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including”shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to havethe same meaning and effect as the word “shall.”  Unless the context requires otherwise(a) any definition of or reference to any Loan Document, agreement,instrument or other document herein shall be construed as referring to suchagreement, instrument or other document as from time to time amended,supplemented or otherwise modified (subject to any restrictions on such amendments,supplements or modifications set forth herein), (b) any reference hereinto any person shall be construed to include such person’s successors andassigns, (c) the words “herein,” “hereof” and “hereunder,” and words ofsimilar import, shall be construed to refer to this Agreement in its entiretyand not to any particular provision hereof, (d) all references herein toArticles, Sections, Exhibits and Schedules shall be construed to refer toArticles and Sections of, and Exhibits and Schedules to, this Agreement,(e) any reference to any law or regulation herein shall refer to such lawor regulation as amended, modified or supplemented from time to time,(f) the words “asset” and “property” shall be construed to have the samemeaning and effect and to refer to any and all tangible and intangible assetsand properties, including cash, securities, accounts and contract rights and(g) “on,” when used with respect to the Mortgaged Property or any propertyadjacent to the Mortgaged Property, means “on, in, under, above or about.”

**SECTION 1.04     Accounting Terms; GAAP**.  Except as otherwise expressly providedherein, all financial statements to be delivered pursuant to this Agreementshall be prepared in accordance with GAAP as in effect from time to time andall terms of an accounting or financial nature shall be construed andinterpreted in accordance with GAAP, as in effect on the date hereof unlessotherwise agreed to by the US Borrower and the Required Lenders.

**SECTION 1.05     Resolution of DraftingAmbiguities**.  Each LoanParty acknowledges and agrees that it was represented by counsel in connectionwith the execution and delivery of the Loan Documents to which it is a party,that it and its counsel reviewed and participated in the preparation andnegotiation hereof and thereof and that any rule of construction to the effectthat ambiguities are to be resolved against the drafting party shall not be employedin the interpretation hereof or thereof.

# **ARTICLEII**

# **THECREDITS**

**SECTION 2.01     Commitments**.

### (a)           Subject to the terms and conditions and relying upon therepresentations and warranties herein set forth, each Lender agrees, severallyand not jointly, to make Cayman Revolving Loans to the Cayman Borrower, at anytime and from time to time on or after the Closing Date until the earlier of theFinal Maturity Date and the termination of the Revolving Commitment of suchLender in accordance with the terms hereof, in an aggregate principal amount atany time outstanding that will not result in such Lender’s Revolving Exposureexceeding such Lender’s  RevolvingCommitment.  Within the limits set forthabove in this Section 2.01(a) and subject to the terms, conditions andlimitations set forth herein, the Cayman Borrower may borrow, pay or prepay andreborrow Cayman Revolving Loans.

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### (b)           Subjectto the terms and conditions and relying upon the representations and warrantiesherein set forth, each Lender agrees, severally and not jointly, to make USRevolving Loans to the US Borrower, at any time and from time to time on orafter the Closing Date until the earlier of the Final Maturity Date and thetermination of the Revolving Commitment of such Lender in accordance with theterms hereof, in an aggregate principal amount at any time outstanding thatwill not result in such Lender’s Revolving Exposure exceeding such Lender’sRevolving Commitment.  Within the limitsset forth above in this Section 2.01(b) and subject to the terms,conditions and limitations set forth herein, the US Borrower may borrow, pay orprepay and reborrow US Revolving Loans.

**SECTION2.02     Loans**.

### (a)           EachLoan (other than a  Swingline Loan) shallbe made as part of a Borrowing consisting of Loans made by the Lenders ratablyin accordance with their applicable Commitments; *provided*that the failure of any Lender to make its Loan shall not in itself relieve anyother Lender of its obligation to lend hereunder (it being understood, however,that no Lender shall be responsible for the failure of any other Lender to makeany Loan required to be made by such other Lender).  Except for Loans deemed made pursuant to Section 2.18(A)(e)(ii)or Section 2.18(B)(e)(ii), (x) ABR Revolving Loans comprising anyBorrowing shall be in an aggregate principal amount that is (i) anintegral multiple of $1.0 million and not less than $5.0 million or(ii) equal to the remaining available balance of the applicable Commitmentsand (y) the Eurodollar Loans comprising any Borrowing shall be in anaggregate principal amount that is (i) an integral multiple of $1.0million and not less than $5.0 million or (ii) equal to the remainingavailable balance of the applicable Commitments.

### (b)           Subjectto Sections 2.11 and 2.12, each Borrowing shall be comprisedentirely of ABR Revolving Loans or Eurodollar Loans as a Borrower may requestpursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan by causing anydomestic or foreign branch or Affiliate of such Lender to make such Loan; *provided* that any exercise of such option shall not affectthe obligation of any Borrower to repay such Loan in accordance with the termsof this Agreement or the obligations of such Lender to make such Loan inaccordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time; *provided* that neither of the Borrowers shall be entitled torequest any Borrowing that, if made, would result in more than five EurodollarBorrowings outstanding hereunder at any one time for all Loans.  For purposes of the foregoing, Borrowingshaving different Interest Periods, regardless of whether they commence on thesame date, shall be considered separate Borrowings.

### (c)           Exceptwith respect to Loans deemed made pursuant to Section 2.18(A)(e)(ii)or Section 2.18(B)(e)(ii), each Lender shall make each Loan to be madeby it hereunder on the proposed date thereof by wire transfer of immediatelyavailable funds to such account in New York City as the Administrative Agentmay designate not later than 11:00 a.m., New York City time, and theAdministrative Agent shall promptly credit the amounts so received to anaccount as directed by the relevant Borrower in the applicable BorrowingRequest maintained with the Administrative Agent or, if a Borrowing shall not occuron such date because any condition precedent herein specified shall not havebeen met, return the amounts so received to the respective Lenders.

### (d)           Unlessthe Administrative Agent shall have received notice from a Lender prior to thedate of any Borrowing that such Lender will not make available to theAdministrative Agent such Lender’s portion of such Borrowing, theAdministrative Agent may assume that such Lender has made such portionavailable to the Administrative Agent on the date of such Borrowing inaccordance with paragraph (c) above, and the Administrative Agent may, inreliance upon such assumption, make 

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### available to the relevant Borrower on such date a correspondingamount.  If the Administrative Agentshall have so made funds available, then, to the extent that such Lender shallnot have made such portion available to the Administrative Agent, each suchLender and the relevant Borrower severally agrees to repay to theAdministrative Agent forthwith on demand such corresponding amount togetherwith interest thereon, for each day from the date such amount is made availableto the relevant Borrower until the date such amount is repaid to theAdministrative Agent at (i) in the case of a Borrower, the interest rateapplicable at the time to the Loans comprising such Borrowing and (ii) inthe case of such Lender, the greater of the Federal Funds Effective Rate and arate determined by the Administrative Agent in accordance with banking industryrules on interbank compensation.  If suchLender shall repay to the Administrative Agent such corresponding amount, suchamount shall constitute such Lender’s Loan as part of such Borrowing forpurposes of this Agreement, and the relevant Borrower’s obligation to repay theAdministrative Agent such corresponding amount pursuant to this Section 2.02(d)shall cease.

### (e)           Notwithstandingany other provision of this Agreement, no Borrower shall be entitled torequest, or to elect to convert or continue, any Borrowing if the InterestPeriod requested with respect thereto would end after the Final Maturity Date.

**SECTION 2.03     Borrowing Procedure**.  To request a Revolving Borrowing, therelevant Borrower shall deliver, by hand delivery or telecopier, a dulycompleted and executed Borrowing Request to the Administrative Agent(i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., NewYork City time, three Business Days before the date of the proposed Borrowingor (ii) in the case of an ABR Borrowing, not later than 9:00 a.m., NewYork City time, on the date of the proposed Borrowing.  Each Borrowing Request shall be irrevocableand shall specify the following information in compliance with Section 2.02:

(a)           theaggregate amount of such Borrowing;

(b)           thedate of such Borrowing, which shall be a Business Day;

(c)           whethersuch Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

(d)           inthe case of a Eurodollar Borrowing, the initial Interest Period to beapplicable thereto, which shall be a period contemplated by the definition ofthe term “Interest Period”;

(e)           thelocation and number of the relevant Borrower’s account to which funds are to bedisbursed, which shall comply with the requirements of Section 2.02(c);and

(f)            thatthe conditions set forth in Sections 4.02(b)-(d) have beensatisfied as of the date of the notice.

If no election as to the Type of Borrowing isspecified, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is specified withrespect to any requested Eurodollar Borrowing, then the relevant Borrower shallbe deemed to have selected an Interest Period of one month’s duration.  Promptly following receipt of a BorrowingRequest in accordance with this Section, the Administrative Agent shall adviseeach Lender of the details thereof and of the amount of such Lender’s Loan tobe made as part of the requested Borrowing.

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**SECTION2.04     Evidence of Debt;Repayment of Loans**.

### (a)           CaymanBorrower Promise to Repay.  TheCayman Borrower hereby unconditionally promises to pay (i)  to theAdministrative Agent for the account of each Revolving Lender, then unpaidprincipal amount of each Cayman Revolving Loan of such Revolving Lender on theFinal Maturity Date and (ii) to the Swingline Lender, then unpaidprincipal amount of each Cayman Swingline Loan on the earlier of the FinalMaturity Date and the first date after such Cayman Swingline Loan is made thatis the 15th or last day of a calendar month and is at least two Business Daysafter such Cayman Swingline Loan is made; *provided* thaton each date that a Revolving Borrowing is made, the Cayman Borrower shallrepay all Cayman Swingline Loans that were outstanding on the date suchBorrowing was requested.  Once a paymentis made by the Cayman Borrower to the Administrative Agent for the account ofeach Revolving Lender, no Revolving Lender shall have any recourse against theCayman Borrower for the amount so paid.

### (b)           USBorrower Promise to Repay.  The USBorrower hereby unconditionally promises to pay (i)  to the AdministrativeAgent for the account of each Revolving Lender, then unpaid principal amount ofeach US Revolving Loan of such Revolving Lender on the Final Maturity Date and(ii) to the Swingline Lender, then unpaid principal amount of each USSwingline Loan on the earlier of the Final Maturity Date and the first dateafter such US Swingline Loan is made that is the 15th or last day of a calendarmonth and is at least two Business Days after such US Swingline Loan is made; *provided* that on each date that a Revolving Borrowing ismade, the US Borrower shall repay all US Swingline Loans that were outstandingon the date such Borrowing was requested. Once a payment is made by the US Borrower to the Administrative Agentfor the account of each Revolving Lender, no Revolving Lender shall have any recourseagainst the US Borrower for the amount so paid.

### (c)           Lenderand Administrative Agent Records. Each Lender shall maintain in accordance with its usual practice anaccount or accounts evidencing the Indebtedness of each Borrower to such Lenderresulting from each Cayman Revolving Loan and US Revolving Loan, as the casemay be, made by such Lender from time to time, including the amounts ofprincipal and interest payable and paid to such Lender from time to time underthis Agreement.  The Administrative Agentshall maintain accounts in which it will record (i) the amount of eachCayman Revolving Loan and US Revolving Loan made hereunder, the Type and Classthereof and the Interest Period applicable thereto; (ii) the amount of anyprincipal or interest due and payable or to become due and payable from eachBorrower to each Lender hereunder; and (iii) the amount of any sum receivedby the Administrative Agent hereunder for the account of the Lenders and eachLender’s share thereof.  The entries madein the accounts maintained pursuant to this paragraph shall be *prima facie*, but rebuttable, evidence of the existence andamounts of the obligations therein recorded; *provided*that the failure of any Lender or the Administrative Agent to maintain suchaccounts or any error therein shall not in any manner affect the obligations ofany Borrower to repay the Loans in accordance with their terms.

### (d)           PromissoryNotes.  Any Lender by written noticeto the relevant Borrower (with a copy to the Administrative Agent) may requestthat Loans of any Class made by it be evidenced by a promissory note.  In such event, the relevant Borrower shall prepare,execute and deliver to such Lender a promissory note payable to the order ofsuch Lender (or, if requested by such Lender, to such Lender and its registeredassigns) in the form of Exhibit K-1, K-2(A), K-1(B)or K-2(A), as the case may be. Thereafter, the Loans evidenced by such promissory note and interestthereon shall at all times (including after assignment pursuant to Section 10.04)be represented by one or more promissory notes in such form payable to theorder of the payee named therein (or, if such promissory note is a registerednote, to such payee and its registered assigns).

 

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### (e)           Currency.  All Loans made hereunder shall be made indollars, and each repayment thereof and any other payment in respect of theObligations shall be made in dollars.

**SECTION2.05     Fees**.

### (a)           CommitmentFee.  The US Borrower agrees to payto the Administrative Agent for the account of each Lender a commitment fee (a “**Commitment Fee**”) equal to the ApplicableFee per annum on the average daily unused amount of each Commitment of suchLender during the period from and including the date hereof to but excludingthe date on which such Commitment terminates. Accrued Commitment Fees shall be payable in arrears (A) on the lastBusiness Day of March, June, September and December of each year, commencing onthe first such date to occur after the date hereof, and (B) on the date onwhich such Commitment terminates. Commitment Fees shall be computed on the basis of a year of360 days and shall be payable for the actual number of days elapsed(including the first day but excluding the last day).  For purposes of computing Commitment Feeswith respect to Revolving Commitments, a Revolving Commitment of a Lender shallbe deemed to be used to the extent of the outstanding Revolving Loans and LCExposure of such Lender (and the Swingline Exposure of such Lender shall be disregardedfor such purpose).

### (b)           AdministrativeAgent Fees.  Each Borrower agrees topay to the Administrative Agent, for its own account, the administrative feespayable in the amounts and at the times separately agreed upon between suchBorrower and the Administrative Agent (the “**AdministrativeAgent Fees**”).

### (c)           CaymanLC and Cayman Fronting Fees.  TheCayman Borrower agrees to pay (i) to the Administrative Agent for theaccount of each Revolving Lender a participation fee (“**Cayman LC Participation Fee**”) with respectto its participations in Cayman Letters of Credit, which shall accrue at a rateequal to the Applicable Margin from time to time used to determine the interestrate on Eurodollar Revolving Loans pursuant to Section 2.06 on theaverage daily amount of such Lender’s Cayman LC Exposure (excluding any portionthereof attributable to Cayman Reimbursement Obligations) during the periodfrom and including the Closing Date to but excluding the later of the date onwhich such Lender’s Revolving Commitment terminates and the date on which suchLender ceases to have any Cayman LC Exposure, and (ii) to the Issuing Banka fronting fee (“**Cayman Fronting Fee**”),which shall accrue at the rate of 0.125% per annum on the average daily amountof the Cayman LC Exposure (excluding any portion thereof attributable to CaymanReimbursement Obligations) during the period from and including the ClosingDate to but excluding the later of the date of termination of the Revolving Commitmentsand the date on which there ceases to be any Cayman LC Exposure, as well as theIssuing Bank’s customary fees with respect to the issuance, amendment, renewalor extension of any Cayman Letter of Credit or processing of drawingsthereunder.  Accrued Cayman LCParticipation Fees and Cayman Fronting Fees shall be payable in arrears(i) on the last Business Day of March, June, September and December ofeach year, commencing on the first such date to occur after the Closing Date,and (ii) on the date on which the Revolving Commitments terminate.  Any such fees accruing after the date onwhich the Revolving Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing Bankpursuant to this paragraph shall be payable within 10 days after demandtherefor.  All Cayman LC ParticipationFees and Cayman Fronting Fees shall be computed on the basis of a year of360 days and shall be payable for the actual number of days elapsed(including the first day but excluding the last day).

### (d)           USLC and US Fronting Fees.  The USBorrower agrees to pay (i) to the Administrative Agent for the account ofeach Revolving Lender a participation fee (“**USLC Participation Fee**”) with respect to its participations in USLetters of Credit, which shall accrue at a rate 

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### equal to the Applicable Margin from time to time used to determine theinterest rate on Eurodollar Revolving Loans pursuant to Section 2.06on the average daily amount of such Lender’s US LC Exposure (excluding anyportion thereof attributable to US Reimbursement Obligations) during the periodfrom and including the Closing Date to but excluding the later of the date onwhich such Lender’s Revolving Commitment terminates and the date on which suchLender ceases to have any US LC Exposure, and (ii) to the Issuing Bank afronting fee (“**US Fronting Fee**”),which shall accrue at the rate of 0.125% per annum on the average daily amountof the US LC Exposure (excluding any portion thereof attributable to USReimbursement Obligations) during the period from and including the ClosingDate to but excluding the later of the date of termination of the RevolvingCommitments and the date on which there ceases to be any US LC Exposure, aswell as the Issuing Bank’s customary fees with respect to the issuance,amendment, renewal or extension of any US Letter of Credit or processing ofdrawings thereunder.  Accrued US LCParticipation Fees and US Fronting Fees shall be payable in arrears (i) onthe last Business Day of March, June, September and December of each year,commencing on the first such date to occur after the Closing Date, and(ii) on the date on which the Revolving Commitments terminate.  Any such fees accruing after the date onwhich the Revolving Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing Bank pursuantto this paragraph shall be payable within 10 days after demandtherefor.  All US LC Participation Feesand US Fronting Fees shall be computed on the basis of a year of 360 daysand shall be payable for the actual number of days elapsed (including the firstday but excluding the last day).

### (e)           AllFees.  All Fees shall be paid on thedates due, in immediately available funds in dollars, to the AdministrativeAgent for distribution, if and as appropriate, among the Lenders, except thatthe Cayman Borrower shall pay the Cayman Fronting Fees directly to the IssuingBank and the US Borrower shall pay the US Fronting Fees directly to the IssuingBank.  Once paid, none of the Fees shallbe refundable under any circumstances.

**SECTION2.06     Interest on Loans**.

### (a)           ABRLoans.  Subject to the provisions of Section 2.06(c),the Revolving Loans comprising each ABR Borrowing, including each SwinglineLoan, shall bear interest at a rate per annum equal to the Alternate Base Rate *plus* the Applicable Margin in effect from time to time.

### (b)           EurodollarLoans.  Subject to the provisions of Section 2.06(c),the Loans comprising each Eurodollar Borrowing shall bear interest at a rateper annum equal to the Adjusted LIBOR Rate for the Interest Period in effectfor such Borrowing *plus* theApplicable Margin in effect from time to time.

### (c)           DefaultRate.  Notwithstanding the foregoing,during an Event of Default, all Obligations shall, to the extent permitted by applicablelaw, bear interest, after as well as before judgment, at a per annum rate equalto (i) in the case of principal of or interest on any Loan, 2% *plus* the rate otherwise applicable to such Loan as providedin the preceding paragraphs of this Section 2.06 or (ii) inthe case of any other amount, 2% *plus* the rateapplicable to ABR Revolving Loans as provided in Section 2.06(a)(in either case, the “**Default Rate**”).

### (d)           InterestPayment Dates.  Accrued interest oneach Loan shall be payable in arrears on each Interest Payment Date for suchLoan; *provided* that (i) interest accruedpursuant to Section 2.06(c) shall be payable on demand,(ii) in the event of any repayment or prepayment of any Loan (other than aprepayment of an ABR Revolving Loan or a Swingline Loan without a permanentreduction in Revolving Commitments), accrued interest on the principal amountrepaid or prepaid shall be payable 

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### on the date of such repayment or prepayment and (iii) in the eventof any conversion of any Eurodollar Loan prior to the end of the currentInterest Period therefor, accrued interest on such Loan shall be payable on theeffective date of such conversion.

### (e)           InterestCalculation.  All interest hereundershall be computed on the basis of a year of 360 days, except that interestcomputed by reference to the Alternate Base Rate shall be computed on the basisof a year of 365 days (or 366 days in a leap year), and in each caseshall be payable for the actual number of days elapsed (including the first daybut excluding the last day).  Theapplicable Alternate Base Rate or Adjusted LIBOR Rate shall be determined bythe Administrative Agent in accordance with the provisions of this Agreementand such determination shall be conclusive absent manifest error.

**SECTION2.07     Termination andReduction of Commitments**.

### (a)           Terminationof Commitments.  The RevolvingCommitments, the Swingline Commitment and the LC Commitment shall automaticallyterminate on the Final Maturity Date.

### (b)           OptionalTerminations and Reductions.  At itsoption, the US Borrower may at any time terminate, or from time to timepermanently reduce, the Commitments of any Class; *provided*that (i) each reduction of the Commitments of any Class shall be in anamount that is an integral multiple of $1.0 million and not less than $5.0million and (ii) the Revolving Commitments shall not be terminated orreduced if, after giving effect to any concurrent prepayment of the RevolvingLoans in accordance with Section 2.10, the aggregate amount ofRevolving Exposures would exceed the aggregate amount of Revolving Commitments.

### (c)           BorrowerNotice.  The US Borrower shall notifythe Administrative Agent in writing of any election to terminate or reduce theCommitments under Section 2.07(b) at least three Business Daysprior to the effective date of such termination or reduction, specifying such electionand the effective date thereof.  Promptlyfollowing receipt of any notice, the Administrative Agent shall advise theLenders of the contents thereof.  Eachnotice delivered by the US Borrower pursuant to this Section shall beirrevocable; *provided* that a notice oftermination of the Commitments delivered by the US Borrower may state that suchnotice is conditioned upon the effectiveness of other credit facilities, inwhich case such notice may be revoked by the US Borrower (by notice to theAdministrative Agent on or prior to the specified effective date) if suchcondition is not satisfied.  Anytermination or reduction of the Commitments of any Class shall bepermanent.  Each reduction of theCommitments of any Class shall be made ratably among the Lenders in accordancewith their respective Commitments of such Class.

**SECTION2.08     Interest Elections**.

### (a)           Generally.  Each Revolving Borrowing initially shall beof the Type specified in the applicable Borrowing Request and, in the case of aEurodollar Borrowing, shall have an initial Interest Period as specified insuch Borrowing Request.  Thereafter, therelevant Borrower may elect to convert such Borrowing to a different Type or tocontinue such Borrowing and, in the case of a Eurodollar Borrowing, may electInterest Periods therefor, all as provided in this Section.  The relevant Borrower may elect differentoptions with respect to different portions of the affected Borrowing, in whichcase each such portion shall be allocated ratably among the Lenders holding theLoans comprising such Borrowing, and the Loans comprising each such portionshall be considered a separate Borrowing. Notwithstanding anything to the contrary, no Borrower shall be entitledto request any conversion or continuation that, if made, would result in morethan five Eurodollar Borrowings outstanding hereunder at 

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### any one time for all Loans.  ThisSection shall not apply to Swingline Borrowings, which may not be converted orcontinued.

### (b)           InterestElection Notice.  To make an electionpursuant to this Section, the relevant Borrower shall deliver, by hand deliveryor telecopier, a duly completed and executed Interest Election Request to theAdministrative Agent not later than the time that a Borrowing Request would berequired under Section 2.03 if the relevant Borrower wererequesting a Revolving Borrowing of the Type resulting from such election to bemade on the effective date of such election. Each Interest Election Request shall be irrevocable.  Each Interest Election Request shall specifythe following information in compliance with Section 2.02:

#### (i)      the Borrowing to which such InterestElection Request applies and, if different options are being elected withrespect to different portions thereof, or if outstanding Borrowings are beingcombined, allocation to each resulting Borrowing (in which case the informationto be specified pursuant to clauses (iii) and (iv) below shall bespecified for each resulting Borrowing);

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

#### (iii)    whether the resulting Borrowing is to be anABR Borrowing or a Eurodollar Borrowing; and

#### (iv)    if the resulting Borrowing is a EurodollarBorrowing, the Interest Period to be applicable thereto after giving effect tosuch election, which shall be a period contemplated by the definition of theterm “Interest Period”.

If any such Interest Election Request requests aEurodollar Borrowing but does not specify an Interest Period, then the relevantBorrower shall be deemed to have selected an Interest Period of one month’sduration.

Promptly following receipt of an Interest ElectionRequest, the Administrative Agent shall advise each Lender of the detailsthereof and of such Lender’s portion of each resulting Borrowing.

### (c)           AutomaticConversion to ABR Borrowing.  If anInterest Election Request with respect to a Eurodollar Borrowing is not timelydelivered prior to the end of the Interest Period applicable thereto, then,unless such Borrowing is repaid as provided herein, at the end of such InterestPeriod such Borrowing shall be converted to an ABR Borrowing.   Notwithstanding any contrary provisionhereof, if an Event of Default has occurred and is continuing, the AdministrativeAgent or the Required Lenders may require, by notice to the US Borrower, that(i) no outstanding Borrowing may be converted to or continued as aEurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowingshall be converted to an ABR Borrowing at the end of the Interest Period applicablethereto.

**SECTION 2.09      [IntentionallyDeleted]**.

## **SECTION 2.10      Optional andMandatory Prepayments of Loans**.

### (a)           OptionalPrepayments.  The Borrowers shallhave the right at any time and from time to time to prepay any Borrowing, inwhole or in part, subject to the requirements of this Section 2.10;*provided* that each partial prepaymentshall be in an amount that is an integral multiple of 

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### $1.0 million and not less than $5.0 million or, if less, the outstandingprincipal amount of such Borrowing.

### (b)           Revolving Loan Prepayments.

#### (i)      In the event of the termination of all the RevolvingCommitments the Borrowers shall, on the date of such termination, repay orprepay all of their outstanding Revolving Borrowings and all outstandingSwingline Loans and replace all outstanding Letters of Credit or cash collateralizeall outstanding Letters of Credit in accordance with the procedures set forthin Section 2.18(i).

#### (ii)     In the event of any partial reduction ofthe Revolving Commitments, then (x) at or prior to the effective date ofsuch reduction, the Administrative Agent shall notify the Borrowers and theRevolving Lenders of the sum of the Revolving Exposures after giving effectthereto and (y) if the sum of the Revolving Exposures would exceed theaggregate amount of Revolving Commitments after giving effect to suchreduction, then each of the relevant Borrowers shall, on the date of such reduction,*first*, repay or prepay Swingline Loans, *second*, repay or prepay Revolving Borrowings and *third*, replace outstanding Letters of Credit or cashcollateralize outstanding Letters of Credit in accordance with the proceduresset forth in Section 2.18(A)(i) and Section 2.18(B)(i), inan aggregate amount sufficient to eliminate such excess.

#### (iii)    In the event that the sum of all Lenders’Revolving Exposures exceeds the Revolving Commitments then in effect, then eachof the relevant Borrowers shall, without notice or demand, immediately *first*, repay or prepay Swingline Loans, *second*,repay or prepay Revolving Borrowings, and *third*, replaceoutstanding Letters of Credit or cash collateralize outstanding Letters ofCredit in accordance with the procedures set forth in Section 2.18(A)(i)and Section 2.18(B)(i), in an aggregate amount sufficient to eliminatesuch excess.

#### (iv)    In the event that the aggregate LC Exposureexceeds the LC Commitment then in effect, then each of the relevant Borrowersshall, without notice or demand, immediately replace outstanding Letters ofCredit or cash collateralize outstanding Letters of Credit in accordance withthe procedures set forth in Section 2.18(A)(i) and Section2.18(B)(i), in an aggregate amount sufficient to eliminate such excess.

#### (v)     In the event that the sum of all Lenders’Swingline Exposure exceeds the Swingline Commitment then in effect, then eachof the relevant Borrowers shall, without notice or demand, immediately repay orprepay Swingline Loans in an aggregate amount sufficient to eliminate suchexcess.

### (c)           Applicationof Prepayments.  Prior to anyprepayment hereunder, the relevant Borrower shall select the Borrowing orBorrowings to be prepaid and shall specify such selection in the notice of suchprepayment pursuant to Section 2.10(d), subject to the provisionsof this Section 2.10(c).  Amounts to be applied pursuant to this Section 2.10 to theprepayment of Revolving Loans shall be applied, as applicable, first to reduceoutstanding ABR Revolving Loans.  Anyamounts remaining after each such application shall be applied to prepayEurodollar Revolving Loans.  Notwithstandingthe foregoing, if the amount of any prepayment of Loans required under this Section 2.10shall be in excess of the amount of the ABR Revolving Loans at the timeoutstanding (an “**Excess Amount**”),only the portion of the amount of such prepayment as is equal to the amount ofsuch outstanding ABR Revolving 

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### Loans shall be immediately prepaid and, at the election of the USBorrower, the Excess Amount shall be either (A) deposited in an escrow accounton terms satisfactory to the Collateral Agent and applied to the prepayment ofEurodollar Loans on the last day of then next-expiring Interest Period forEurodollar Loans; *provided* that (i) interestin respect of such Excess Amount shall continue to accrue thereon at the rateprovided hereunder for the Loans which such Excess Amount is intended to repayuntil such Excess Amount shall have been used in full to repay such Loans and(ii) at any time while a Default has occurred and is continuing, theAdministrative Agent may, and upon written direction from the Required Lendersshall, apply any or all proceeds then on deposit to the payment of such Loansin an amount equal to such Excess Amount or (B) prepaid immediately,together with any amounts owing to the Lenders under Section 2.13.

### (d)           Noticeof Prepayment.  The Borrowers shallnotify the Administrative Agent (and, in the case of prepayment of a SwinglineLoan, the Swingline Lender) by written notice of any prepayment hereunder(i) in the case of prepayment of a Eurodollar Borrowing, not later than11:00 a.m., New York City time, three Business Days before the date ofprepayment, (ii) in the case of prepayment of an ABR Borrowing, not laterthan 11:00 a.m., New York City time, one Business Day before the date of prepaymentand (iii) in the case of prepayment of a Swingline Loan, not later than 11:00a.m., New York City time, on the date of prepayment.  Each such notice shall be irrevocable; *provided* that, if a notice of prepayment is given inconnection with a conditional notice of termination of the Commitments as contemplatedby Section 2.07, then such notice of prepayment may be revoked ifsuch termination is revoked in accordance with Section 2.07.  Each such notice shall specify the prepaymentdate, the principal amount of each Borrowing or portion thereof to be prepaidand, in the case of a mandatory prepayment, a reasonably detailed calculationof the amount of such prepayment. Promptly following receipt of any such notice (other than a notice relatingsolely to Swingline Loans), the Administrative Agent shall advise the Lendersof the contents thereof.  Each partialprepayment of any Borrowing shall be in an amount that would be permitted inthe case of a Credit Extension of the same Type as provided in Section 2.02,except as necessary to apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing shall beapplied ratably to the Loans included in the prepaid Borrowing and otherwise inaccordance with this Section 2.10. Prepayments shall be accompanied by accrued interest to the extent requiredby Section 2.06.

**SECTION 2.11     Alternate Rate of Interest**.  If prior to the commencement of any InterestPeriod for a Eurodollar Borrowing:

(a)           theAdministrative Agent determines (which determination shall be final andconclusive absent manifest error) that adequate and reasonable means do notexist for ascertaining the Adjusted LIBOR Rate for such Interest Period; or

(b)           theAdministrative Agent is advised in writing by the Required Lenders that theAdjusted LIBOR Rate for such Interest Period will not adequately and fairlyreflect the cost to such Lenders of making or maintaining their Loans includedin such Borrowing for such Interest Period;

then the Administrative Agent shall give writtennotice thereof to the Borrowers and the Lenders as promptly as practicable thereafterand, until the Administrative Agent notifies Borrowers and the Lenders that thecircumstances giving rise to such notice no longer exist, (i) any InterestElection Request that requests the conversion of any Borrowing to, orcontinuation of any Borrowing as, a Eurodollar Borrowing shall be ineffectiveand (ii) if any Borrowing Request requests a Eurodollar Borrowing, suchBorrowing shall be made as an ABR Borrowing.

** **

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**SECTION 2.12     Yield Protection**.

### (a)           Increased Costs Generally. If any Change in Law shall:

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

#### (ii)     subject any Lender or the Issuing Bank toany tax of any kind whatsoever with respect to this Agreement, any Letter ofCredit, any participation in a Letter of Credit or any Eurodollar Loan made byit, or change the basis of taxation of payments to such Lender or the IssuingBank in respect thereof (except for Indemnified Taxes or Other Taxes covered bySection 2.15 and the imposition of, or any change in the rate of, anyExcluded Tax payable by such Lender or the Issuing Bank); or

#### (iii)    impose on any Lender or the Issuing Bank orthe London interbank market any other condition, cost or expense affecting thisAgreement or Eurodollar Loans made by such Lender or any Letter of Credit orparticipation therein;

and the result of any of the foregoing shall be toincrease the cost to such Lender of making or maintaining any Eurodollar Loan(or of maintaining its obligation to make any such Loan), or to increase thecost to such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’sholding company, if any, of participating in, issuing or maintaining any Letterof Credit (or of maintaining its obligation to participate in or to issue anyLetter of Credit), or to reduce the amount of any sum received or receivable bysuch Lender or the Issuing Bank hereunder (whether of principal, interest orany other amount), then, upon request of such Lender or the Issuing Bank, theUS Borrower will pay to such Lender or the Issuing Bank, as the case may be, inaccordance with Section 2.12(c), such additional amount or amounts aswill compensate such Lender or the Issuing Bank, as the case may be, for suchadditional costs incurred or reduction suffered.

### (b)           CapitalRequirements.  If any Lender or theIssuing Bank determines (in good faith, but in its sole absolute discretion)that any Change in Law affecting such Lender or the Issuing Bank or any lendingoffice of such Lender or such Lender’s or the Issuing Bank’s holding company,if any, regarding capital requirements has or would have the effect of reducingthe rate of return on such Lender’s or the Issuing Bank’s capital or on the capitalof such Lender’s or the Issuing Bank’s holding company, if any, as aconsequence of this Agreement, the Commitments of such Lender or the Loans madeby, or participations in Letters of Credit held by, such Lender, or the Lettersof Credit issued by the Issuing Bank, to a level below that which such Lenderor the Issuing Bank or such Lender’s or the Issuing Bank’s holding companycould have achieved but for such Change in Law (taking into consideration suchLender’s or the Issuing Bank’s policies and the policies of such Lender’s orthe Issuing Bank’s holding company with respect to capital adequacy), then fromtime to time the US Borrower will pay to such Lender or the Issuing Bank, asthe case may be, in accordance with Section 2.12(c), such additionalamount or amounts as will compensate such Lender or the Issuing Bank or suchLender’s or the Issuing Bank’s holding company for any such reduction suffered.

### (c)           Certificatesfor Reimbursement.  A certificate ofa Lender or the Issuing Bank setting forth the amount or amounts necessary tocompensate such Lender or the Issuing Bank or its holding company, as the casemay be, as specified in paragraph (a) or (b) of this Section 2.12and 

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### delivered to the US Borrower shall be conclusive absent manifesterror.  The US Borrower shall pay suchLender or the Issuing Bank, as the case may be, the amount shown as due on anysuch certificate within 10 days after receipt thereof.

### (d)           Delayin Requests.  Failure or delay on thepart of any Lender or the Issuing Bank to demand compensation pursuant to this Section2.12 shall not constitute a waiver of such Lender’s or the Issuing Bank’sright to demand such compensation; *provided* thatthe Borrowers shall not be required to compensate a Lender or the Issuing Bankpursuant to this Section for any increased costs incurred or reductionssuffered more than nine months prior to the date that such Lender or theIssuing Bank, as the case may be, notifies the Borrowers of the Change in Lawgiving rise to such increased costs or reductions and of such Lender’s or theIssuing Bank’s intention to claim compensation therefor (except that, if theChange in Law giving rise to such increased costs or reductions is retroactive,then the nine-month period referred to above shall be extended to include theperiod of retroactive effect thereof).

**SECTION 2.13     Breakage Payments**.  In the event of (a) the payment orprepayment, whether optional or mandatory, of any principal of any EurodollarLoan earlier than the last day of an Interest Period applicable thereto (includingas a result of an Event of Default), (b) the conversion of any EurodollarLoan earlier than the last day of the Interest Period applicable thereto,(c) the failure to borrow, convert, continue or prepay any Revolving Loanon the date specified in any notice delivered pursuant hereto or (d) theassignment of any Eurodollar Loan earlier than the last day of the Interest Periodapplicable thereto as a result of a request by a Borrower pursuant to Section 2.16(b),then, in any such event, the US Borrower, in the case such Eurodollar Loan is aUS Revolving Loan, and the Cayman Borrower, in the case such Eurodollar Loan isa Cayman Revolving Loan, shall compensate each Lender for the loss, cost andexpense attributable to such event.  Inthe case of a Eurodollar Loan, such loss, cost or expense to any Lender shallbe deemed to include an amount determined by such Lender to be the excess, ifany, of (i) the amount of interest which would have accrued on theprincipal amount of such Loan had such event not occurred, at the AdjustedLIBOR Rate that would have been applicable to such Loan, for the period fromthe date of such event to the last day of then current Interest Period therefor(or, in the case of a failure to borrow, convert or continue, for the periodthat would have been the Interest Period for such Loan), over (ii) theamount of interest which would accrue on such principal amount for such periodat the interest rate which such Lender would bid were it to bid, at the commencementof such period, for dollar deposits of a comparable amount and period fromother banks in the Eurodollar market.  Acertificate of any Lender setting forth in reasonable detail any amount oramounts that such Lender is entitled to receive pursuant to this Section 2.13shall be delivered to the relevant Borrower (with a copy to the AdministrativeAgent) and shall be conclusive and binding absent manifest error.  The relevant Borrower shall pay such Lenderthe amount shown as due on any such certificate within 5 days after receiptthereof.

**SECTION 2.14     Payments Generally; Pro RataTreatment; Sharing of Setoffs**.

### (a)           Payments Generally. Each Borrower shall make each payment required to be made by ithereunder or under any other Loan Document (whether of principal, interest,fees or Reimbursement Obligations, or of amounts payable under Section 2.12,2.13, 2.15 or 10.03, or otherwise) on or before the timeexpressly required hereunder or under such other Loan Document for such payment(or, if no such time is expressly required, prior to 2:00 p.m., New York Citytime), on the date when due, in immediately available funds, without setoff,deduction or counterclaim.  Any amountsreceived after such time on any date may, in the discretion of theAdministrative Agent, be deemed to have been received on the next succeedingBusiness Day for purposes of calculating interest thereon.  All such payments shall be made to theAdministrative Agent at its offices at 677 Washington Boulevard, 

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### Stamford, Connecticut, except payments to bemade directly to the Issuing Bank or Swingline Lender as expressly providedherein and except that payments pursuant to Sections 2.12, 2.13,2.15 and 10.03 shall be made directly to the persons entitledthereto and payments pursuant to other Loan Documents shall be made to thepersons specified therein.  TheAdministrative Agent shall distribute any such payments received by it for theaccount of any other person to the appropriate recipient promptly followingreceipt thereof.  If any payment underany Loan Document shall be due on a day that is not a Business Day, unlessspecified otherwise, the date for payment shall be extended to the nextsucceeding Business Day, and, in the case of any payment accruing interest,interest thereon shall be payable for the period of such extension.  All payments under each Loan Document shallbe made in dollars, except as expressly specified otherwise.

### (b)           ProRata Treatment.  Each payment by eachBorrower of interest in respect of the Loans shall be applied to the amounts ofsuch obligations owing to the Lenders *pro rata*according to the respective amounts then due and owing to the Lenders.

### (c)           InsufficientFunds.  If at any time insufficientfunds are received by and available to the Administrative Agent to pay fullyall amounts of principal, Reimbursement Obligations, interest and fees then duehereunder, such funds shall be applied (i) *first*,toward payment of interest and fees then due hereunder, ratably among theparties entitled thereto in accordance with the amounts of interest and feesthen due to such parties, and (ii) *second*, towardpayment of principal and Reimbursement Obligations then due hereunder, ratablyamong the parties entitled thereto in accordance with the amounts of principaland Reimbursement Obligations then due to such parties.

### (d)           Sharingof Set-Off.  If any Lender (and/orthe Issuing Bank, which shall be deemed a “Lender” for purposes of this Section2.14(d)) shall, by exercising any right of setoff or counterclaim orotherwise, obtain payment in respect of any principal of or interest on any ofits Loans or other Obligations resulting in such Lender’s receiving payment ofa proportion of the aggregate amount of its Loans and accrued interest thereonor other Obligations greater than its *pro**rata* share thereof as provided herein, then the Lenderreceiving such greater proportion shall (a) notify the AdministrativeAgent of such fact, and (b) purchase (for cash at face value)participations in the Loans and such other obligations of the other Lenders, ormake such other adjustments as shall be equitable, so that the benefit of allsuch payments shall be shared by the Lenders ratably in accordance with theaggregate amount of principal of and accrued interest on their respective Loansand other amounts owing them, *provided* that:

#### (i)      if any such participations are purchasedand all or any portion of the payment giving rise thereto is recovered, suchparticipations shall be rescinded and the purchase price restored to the extentof such recovery, without interest; and

#### (ii)     the provisions of this paragraph shall notbe construed to apply to (x) any payment made by any Borrower pursuant toand in accordance with the express terms of this Agreement or (y) anypayment obtained by a Lender as consideration for the assignment of or sale ofa participation in any of its Loans or participations in Cayman LC Disbursementsor US LC Disbursements to any assignee or participant, other than to therelevant Borrower or any Subsidiary thereof (as to which the provisions of thisparagraph shall apply).

Each Loan Party consents to the foregoing and agrees,to the extent it may effectively do so under applicable Requirements of Law,that any Lender acquiring a participation pursuant to the foregoing arrangementsmay exercise against such Loan Party rights of setoff and counterclaim withrespect to such participation as fully as if such Lender were a direct creditorof such Loan Party in the amount of such 

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participation. If under applicable bankruptcy, insolvency or any similar law anySecured Party receives a secured claim in lieu of a setoff or counterclaim towhich this Section 2.14(d) applies, such Secured Party shall to theextent practicable, exercise its rights in respect of such secured claim in amanner consistent with the rights to which the Secured Party is entitled underthis Section 2.14(d) to share in the benefits of the recovery ofsuch secured claim.

### (e)           BorrowerDefault.  Unless the AdministrativeAgent shall have received notice from the relevant Borrower prior to the dateon which any payment is due to the Administrative Agent for the account of theLenders or the Issuing Bank hereunder that the relevant Borrower will not makesuch payment, the Administrative Agent may assume that the relevant Borrowerhas made such payment on such date in accordance herewith and may, in relianceupon such assumption, distribute to the Lenders or the Issuing Bank, as thecase may be, the amount due.  In suchevent, if the relevant Borrower has not in fact made such payment, then each ofthe Lenders or the Issuing Bank, as the case may be, severally agrees to repayto the Administrative Agent forthwith on demand the amount so distributed tosuch Lender or the Issuing Bank with interest thereon, for each day from andincluding the date such amount is distributed to it to but excluding the dateof payment to the Administrative Agent, at the greater of the Federal FundsEffective Rate and a rate determined by the Administrative Agent in accordancewith banking industry rules on interbank compensation.

### (f)            LenderDefault.  If any Lender shall fail tomake any payment required to be made by it pursuant to Section 2.02(c),2.14(e), 2.17(d), 2.18(d), 2.18(e) or 10.03(c),then the Administrative Agent may, in its discretion (notwithstanding anycontrary provision hereof), apply any amounts thereafter received by theAdministrative Agent for the account of such Lender to satisfy such Lender’sobligations under such Sections until all such unsatisfied obligations arefully paid.

**SECTION2.15     Taxes**.

### (a)           PaymentsFree of Taxes.  Any and all paymentsby or on account of any obligation of the Loan Parties hereunder or under anyother Loan Document shall be made free and clear of and without reduction orwithholding for any Indemnified Taxes or Other Taxes; *provided*that if the Loan Parties shall be required by applicable Requirements of Law todeduct any Indemnified Taxes (including any Other Taxes) from such payments,then (i) the sum payable shall be increased as necessary so that aftermaking all required deductions (including deductions applicable to additionalsums payable under this Section) the Administrative Agent, Lender or IssuingBank, as the case may be, receives an amount equal to the sum it would havereceived had no such deductions been made, (ii) the applicable Loan Partyshall make such deductions and (iii) the applicable Loan Party shalltimely pay the full amount deducted to the relevant Governmental Authority inaccordance with applicable Requirements of Law.

### (b)           Paymentof Other Taxes by Borrowers.  Withoutlimiting the provisions of paragraph (a) above, the US Borrower shall timelypay any Other Taxes to the relevant Governmental Authority in accordance withRequirements of Law that apply to it, and the Cayman Borrower shall timely payany Other Taxes to the relevant Governmental Authority in accordance withRequirements of Law that apply to it.

### (c)           Indemnificationby Borrowers.

#### (i)      The US Borrower shall indemnify theAdministrative Agent, each Lender and the Issuing Bank, within 10 days afterdemand therefor, for the full amount of any Indemnified Taxes or Other Taxes(including Indemnified Taxes 

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#### or Other Taxesimposed or asserted on or attributable to amounts payable under this Section)paid on its behalf by the Administrative Agent, such Lender or the IssuingBank, as the case may be, and any penalties, interest and reasonable expensesarising therefrom or with respect thereto, whether or not such IndemnifiedTaxes or Other Taxes were correctly or legally imposed or asserted by therelevant Governmental Authority.  Acertificate as to the amount of such payment or liability delivered to theUS Borrower by a Lender or the Issuing Bank (with a copy to theAdministrative Agent), or by the Administrative Agent on its own behalf or onbehalf of a Lender or the Issuing Bank, shall be conclusive absent manifesterror.

#### (ii)     The Cayman Borrower shall indemnify theAdministrative Agent, each Lender and the Issuing Bank, within 10 days afterdemand therefor, for the full amount of any Indemnified Taxes or Other Taxes(including Indemnified Taxes or Other Taxes imposed or asserted on or attributableto amounts payable under this Section) paid on its behalf by the AdministrativeAgent, such Lender or the Issuing Bank, as the case may be, and any penalties,interest and reasonable expenses arising therefrom or with respect thereto,whether or not such Indemnified Taxes or Other Taxes were correctly or legallyimposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of suchpayment or liability delivered to the Cayman Borrower by a Lender or theIssuing Bank (with a copy to the Administrative Agent), or by theAdministrative Agent on its own behalf or on behalf of a Lender or the IssuingBank, shall be conclusive absent manifest error.

### (d)           Evidenceof Payments.  As soon as practicableafter any payment of Indemnified Taxes or Other Taxes by a Borrower to aGovernmental Authority, the relevant Borrower shall deliver to theAdministrative Agent the original or a certified copy of a receipt issued bysuch Governmental Authority evidencing such payment, a copy of the returnreporting such payment or other evidence of such payment reasonably satisfactoryto the Administrative Agent.

### (e)           Statusof Lenders.  Any Foreign Lendershall, to the extent it may lawfully do so, deliver to the US Borrower and the Administrative Agent (in such numberof copies as shall be requested by the recipient) on or prior to the date onwhich such Foreign Lender becomes a Lender under this Agreement (and from timeto time thereafter upon the request of the US Borrower or the Administrative Agent,but only if such Foreign Lender is legally entitled to do so), whichever of thefollowing is applicable:

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

#### (ii)     duly completed copies of Internal RevenueService Form W-8ECI,

#### (iii)    in the case of a Foreign Lender claiming thebenefits of the exemption for portfolio interest under Section 881(c) of theCode, (x) a certificate, in substantially the form of Exhibit Q, orany other form approved by the Administrative Agent, to the effect that suchForeign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A)of the Code, (B) a “10 percent shareholder” of the US Borrower within themeaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreigncorporation” described in Section 881(c)(3)(C) of the Code and (y) dulycompleted copies of  Internal RevenueService Form W-8BEN, or

 

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#### (iv)    any other form prescribed by applicableRequirements of Law as a basis for claiming exemption from or a reduction inUnited States Federal withholding tax duly completed together with suchsupplementary documentation as may be prescribed by applicable Requirements ofLaw to permit the US Borrower to determine the withholding or deductionrequired to be made.

### (f)            Treatmentof Certain Refunds.  If theAdministrative Agent, a Lender or the Issuing Bank determines, in its solediscretion, that it has received a refund of any Indemnified Taxes or OtherTaxes as to which it has been indemnified by a Borrower or with respect towhich a Borrower has paid additional amounts pursuant to this Section, it shallpay to such Borrower an amount equal to such refund (but only to the extent ofindemnity payments made, or additional amounts paid, by such Borrower underthis Section with respect to the Indemnified Taxes or Other Taxes giving riseto such refund), net of all out-of-pocket expenses of the Administrative Agent,such Lender or the Issuing Bank, as the case may be, and without interest(other than any interest paid by the relevant Governmental Authority withrespect to such refund); *provided* thatthe relevant Borrower, upon the request of the Administrative Agent, suchLender or the Issuing Bank, agrees to repay the amount paid over to therelevant Borrower (*plus* any penalties,interest or other charges imposed by the relevant Governmental Authority) tothe Administrative Agent, such Lender or the Issuing Bank in the event theAdministrative Agent, such Lender or the Issuing Bank is required to repay suchrefund to such Governmental Authority. This paragraph shall not be construed to require the AdministrativeAgent, any Lender or the Issuing Bank to make available its tax returns (or anyother information relating to its taxes that it deems confidential) to anyBorrower or any other person. Notwithstanding anything to the contrary, in no event will any Lender berequired to pay any amount to any Borrower the payment of which would placesuch Lender in a less favorable net after-tax position than such Lender wouldhave been in if the additional amounts giving rise to such refund of any IndemnifiedTaxes or Other Taxes had never been paid.

**SECTION2.16     Mitigation Obligations;Replacement of Lenders**.

### (a)           Designationof a Different Lending Office.  Ifany Lender requests compensation under Section 2.12, or requireseither of the Borrowers to pay any additional amount to any Lender or anyGovernmental Authority for the account of any Lender pursuant to Section 2.15,then such Lender shall use reasonable efforts to designate a different lendingoffice for funding or booking its Loans hereunder or to assign its rights andobligations hereunder to another of its offices, branches or affiliates, if, inthe judgment of such Lender, such designation or assignment (i) wouldeliminate or reduce amounts payable pursuant to Section 2.12 or 2.15,as the case may be, in the future and (ii) would not subject such Lenderto any unreimbursed cost or expense and would not otherwise be disadvantageousto such Lender.

### (b)           Replacementof Lenders.   If any Lender requestscompensation under Section 2.12, or if a Borrower is required topay any additional amount to any Lender or any Governmental Authority for theaccount of any Lender pursuant to Section 2.15, or if any Lenderdefaults in its obligation to fund Loans hereunder, or if a Borrower exercisesits replacement rights under Section 10.02(d), then the relevantBorrower may, at its sole expense and effort, upon notice to such Lender andthe Administrative Agent, require such Lender to assign and delegate, withoutrecourse (in accordance with and subject to the restrictions contained in, andconsents required by, Section 10.04), all of its interests, 

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### rights and obligations under this Agreement and the other LoanDocuments to an Eligible Assignee that shall assume such obligations (whichassignee may be another Lender, if a Lender accepts such assignment); *provided* that:

#### (i)      the relevant Borrower shall have paid tothe Administrative Agent the processing and recordation fee specified in Section10.04(b);

#### (ii)     such Lender shall have received payment ofan amount equal to the outstanding principal of its Loans and participations inLC Disbursements and Swingline Loans, accrued interest thereon, accruedfees and all other amounts payable to it hereunder and under the other LoanDocuments (including any amounts under Section 2.13), from the assignee(to the extent of such outstanding principal and accrued interest and fees) ora Borrower (in the case of all other amounts);

#### (iii)    in the case of any such assignment resultingfrom a claim for compensation under Section 2.12 or paymentsrequired to be made pursuant to Section 2.15, such assignment willresult in a reduction in such compensation or payments thereafter; and

#### (iv)    such assignment does not conflict withapplicable Requirements of Law.

A Lender shall not be required to make any suchassignment or delegation if, prior thereto, as a result of a waiver by suchLender or otherwise, the circumstances entitling a Borrower to require suchassignment and delegation cease to apply.

**SECTION 2.17     Swingline Loans**.

**A.**            **Cayman Swingline Loans**

### (a)           Cayman Swingline Commitment.  Subject to the terms and conditions set forthherein, the Swingline Lender agrees to make Cayman Swingline Loans to theCayman Borrower from time to time during the Revolving Availability Period, inan aggregate principal amount at any time outstanding that will not result in(i) the aggregate principal amount of outstanding Cayman Swingline Loansexceeding $5.0 million less the aggregate principal amount of USSwingline Loans then outstanding or (ii) the sum of the total RevolvingExposures exceeding the total Revolving Commitments; *provided*that the Cayman Swingline Lender shall not be required to make a CaymanSwingline Loan to refinance an outstanding Swingline Loan.  Within the foregoing limits and subject tothe terms and conditions set forth herein, the Cayman Borrower may borrow,repay and reborrow Swingline Loans.

### (b)           CaymanSwingline Loans.  To request a CaymanSwingline Loan, the Cayman Borrower shall deliver, by hand delivery ortelecopier, a duly completed and executed Cayman Borrowing Request to theAdministrative Agent and the Swingline Lender, not later than 2:00 p.m., NewYork City time, on the day of a proposed Swingline Loan.  Each such notice shall be irrevocable andshall specify the requested date (which shall be a Business Day) and the amountof the requested Cayman Swingline Loan. Each Cayman Swingline Loan shall be an ABR Revolving Loan.  The Swingline Lender shall make each CaymanSwingline Loan available to the Cayman Borrower to an account as directed bythe Cayman Borrower in the applicable Cayman Borrowing Request maintained withthe Administrative Agent (or, in the case of a Swingline Loan made to financethe reimbursement of an Cayman LC Disbursement as provided in Section 2.18(A)(e),by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on therequested date of such Swingline Loan. The Cayman Borrower shall not request a Cayman Swingline Loan if at thetime of or immediately after giving effect to the Extension of Credit contemplatedby such request a Default has occurred and is continuing or would resulttherefrom.  Cayman Swingline Loans shallbe made in minimum amounts of $1.0 million and integral multiples of $500,000above such amount.

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### (c)           Prepayment.  The Cayman Borrower shall have the right atany time and from time to time to repay any Cayman Swingline Loan, in whole orin part, upon giving written notice to the Swingline Lender and theAdministrative Agent before 12:00 (noon), New York City time, on the proposeddate of repayment.

### (d)           Participations.  The Swingline Lender may at any time withintwo (2) Business Days after funding a Cayman Swingline Loan in its discretionby written notice given to the Administrative Agent (*provided*such notice requirement shall not apply if the Swingline Lender and theAdministrative Agent are the same entity) not later than 11:00 a.m., New YorkCity time, on the next succeeding Business Day following such notice requirethe Revolving Lenders to acquire participations on such Business Day in all ora portion of the Swingline Loans then outstanding.  Such notice shall specify the aggregateamount of Cayman Swingline Loans in which Revolving Lenders willparticipate.  Promptly upon receipt ofsuch notice, the Administrative Agent will give notice thereof to eachRevolving Lender, specifying in such notice such Lender’s Pro Rata Percentageof such Cayman Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, uponreceipt of notice as provided above, to pay to the Administrative Agent, forthe account of the Cayman Swingline Lender, such Lender’s Pro Rata Percentageof such Cayman Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation toacquire participations in Swingline Loans pursuant to this paragraph isabsolute and unconditional and shall not be affected by any circumstancewhatsoever, including the occurrence and continuance of a Default or reductionor termination of the Commitments, and that each such payment shall be madewithout any offset, abatement, withholding or reduction whatsoever (so long assuch payment shall not cause such Lender’s Revolving Exposure to exceed suchLender’s Revolving Commitment).  EachRevolving Lender shall comply with its obligation under this paragraph by wiretransfer of immediately available funds, in the same manner as provided in Section 2.02(c)with respect to Loans made by such Lender (and Section 2.02 shallapply, *mutatis mutandis*, to the payment obligationsof the Revolving Lenders), and the Administrative Agent shall promptly pay tothe Swingline Lender the amounts so received by it from the RevolvingLenders.  The Administrative Agent shallnotify the Cayman Borrower of any participations in any Cayman Swingline Loanacquired by the Revolving Lenders pursuant to this paragraph, and thereafterpayments in respect of such Cayman Swingline Loan shall be made to theAdministrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lenderfrom the Cayman Borrower (or other party on behalf of the Cayman Borrower) in respectof a Cayman Swingline Loan after receipt by the Swingline Lender of theproceeds of a sale of participations therein shall be promptly remitted to theAdministrative Agent.  Any such amountsreceived by the Administrative Agent shall be promptly remitted by theAdministrative Agent to the Revolving Lenders that shall have made theirpayments pursuant to this paragraph, as their interests may appear.  The purchase of participations in a CaymanSwingline Loan pursuant to this paragraph shall not relieve the Cayman Borrowerof any default in the payment thereof.

**B.**            **US Swingline Loans**

### (a)           USSwingline Commitment.  Subject to theterms and conditions set forth herein, the Swingline Lender agrees to make USSwingline Loans to the US Borrower from time to time during the RevolvingAvailability Period, in an aggregate principal amount at any time outstandingthat will not result in (i) the aggregate principal amount of outstandingCayman Swingline Loans exceeding $5.0 million less the aggregate principalamount of US Swingline Loans then outstanding or (ii) the sum of the totalRevolving Exposures exceeding the total Revolving Commitments; *provided* that the US Swingline Lender shall not be requiredto make a Swingline Loan to refinance an outstanding US Swingline Loan.  Within the foregoing limits and subject tothe terms and conditions set forth herein, the US Borrower may borrow, repayand reborrow US Swingline Loans.

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### (b)           USSwingline Loans.  To request a USSwingline Loan, the US Borrower shall deliver, by hand delivery or telecopier,a duly completed and executed US Borrowing Request to the Administrative Agentand the Swingline Lender, not later than 2:00 p.m., New York City time, on theday of a proposed Swingline Loan.  Eachsuch notice shall be irrevocable and shall specify the requested date (whichshall be a Business Day) and the amount of the requested US SwinglineLoan.  Each US Swingline Loan shall be anABR Revolving Loan.  The Swingline Lendershall make each US Swingline Loan available to the US Borrower to an account asdirected by the US Borrower in the applicable US Borrowing Request maintainedwith the Administrative Agent (or, in the case of a Swingline Loan made tofinance the reimbursement of an US LC Disbursement as provided in Section 2.18(B)(e),by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on therequested date of such Swingline Loan. the US Borrower shall not request a US Swingline Loan if at the time ofor immediately after giving effect to the Extension of Credit contemplated bysuch request a Default has occurred and is continuing or would resulttherefrom.  US Swingline Loans shall bemade in minimum amounts of $1.0 million and integral multiples of $500,000above such amount.

### (c)           Prepayment.  The US Borrower shall have the right at anytime and from time to time to repay any US Swingline Loan, in whole or in part,upon giving written notice to the Swingline Lender and the Administrative Agentbefore 12:00 (noon), New York City time, on the proposed date of repayment.

### (d)           Participations.  The Swingline Lender may at any time withintwo (2) Business Days after funding a US Swingline Loan in its discretion bywritten notice given to the Administrative Agent (*provided*such notice requirement shall not apply if the Swingline Lender and theAdministrative Agent are the same entity) not later than 11:00 a.m., New YorkCity time, on the next succeeding Business Day following such notice requirethe Revolving Lenders to acquire participations on such Business Day in all ora portion of the Swingline Loans then outstanding.  Such notice shall specify the aggregateamount of US Swingline Loans in which Revolving Lenders will participate.  Promptly upon receipt of such notice, theAdministrative Agent will give notice thereof to each Revolving Lender,specifying in such notice such Lender’s Pro Rata Percentage of such USSwingline Loan or Loans.  Each RevolvingLender hereby absolutely and unconditionally agrees, upon receipt of notice asprovided above, to pay to the Administrative Agent, for the account of the USSwingline Lender, such Lender’s Pro Rata Percentage of such US Swingline Loanor Loans.  Each Revolving Lenderacknowledges and agrees that its obligation to acquire participations in USSwingline Loans pursuant to this paragraph is absolute and unconditional andshall not be affected by any circumstance whatsoever, including the occurrenceand continuance of a Default or reduction or termination of the Commitments,and that each such payment shall be made without any offset, abatement,withholding or reduction whatsoever (so long as such payment shall not causesuch Lender’s Revolving Exposure to exceed such Lender’s RevolvingCommitment).  Each Revolving Lender shallcomply with its obligation under this paragraph by wire transfer of immediatelyavailable funds, in the same manner as provided in Section 2.02(c)with respect to Loans made by such Lender (and Section 2.02 shall apply,*mutatis mutandis*, to the paymentobligations of the Revolving Lenders), and the Administrative Agent shallpromptly pay to the Swingline Lender the amounts so received by it from theRevolving Lenders.  The AdministrativeAgent shall notify the US Borrower of any participations in any US SwinglineLoan acquired by the Revolving Lenders pursuant to this paragraph, andthereafter payments in respect of such US Swingline Loan shall be made to theAdministrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lenderfrom the US Borrower (or other party on behalf of the US Borrower) in respectof a US Swingline Loan after receipt by the Swingline Lender of the proceeds ofa sale of participations therein shall be promptly remitted to the AdministrativeAgent.  Any such amounts received by theAdministrative Agent shall be promptly remitted by the Administrative Agent tothe Revolving Lenders that shall have made their 

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### payments pursuant to this paragraph, as their interests mayappear.  The purchase of participationsin a US Swingline Loan pursuant to this paragraph shall not relieve the USBorrower of any default in the payment thereof.

**SECTION 2.18     Letters of Credit**.

**A.            Cayman Letters of Credit**

### (a)           General.  Subject to the terms and conditions set forthherein, the Cayman Borrower may request the Issuing Bank, and the Issuing Bankagrees, to issue Letters of Credit for its own account or the account of itsSubsidiary in a form reasonably acceptable to the Administrative Agent and theIssuing Bank, at any time and from time to time during the RevolvingAvailability Period (*provided* thatthe Cayman Borrower shall be a co-applicant, and be jointly and severallyliable, with respect to each Letter of Credit issued for the account of itsSubsidiary).  The Issuing Bank shall haveno obligation to issue, and the Cayman Borrower shall not request the issuanceof, any Letter of Credit at any time if after giving effect to such issuance,the LC Exposure would exceed the LC Commitment or the total Revolving Exposurewould exceed the total Revolving Commitments. In the event of any inconsistency between the terms and conditions ofthis Agreement and the terms and conditions of any form of letter of creditapplication or other agreement submitted by the Cayman Borrower to, or enteredinto by the Cayman Borrower with, the Issuing Bank relating to any Letter ofCredit, the terms and conditions of this Agreement shall control.

### (b)           Requestfor Issuance, Amendment, Renewal, Extension; Certain Conditions and Notices.  To request the issuance of a Cayman Letter ofCredit or the amendment, renewal or extension of an outstanding Cayman Letterof Credit, the Cayman Borrower shall deliver, by hand or telecopier (ortransmit by electronic communication, if arrangements for doing so have beenapproved by the Issuing Bank), a Cayman LC Request to the Issuing Bank and theAdministrative Agent not later than 11:00 a.m. on the third Business Day precedingthe requested date of issuance, amendment, renewal or extension (or such laterdate and time as is acceptable to the Issuing Bank).

A request for an initial issuance of a Cayman Letterof Credit shall specify in form and detail satisfactory to the Issuing Bank:

#### (i)      the proposed issuance date of therequested Cayman Letter of Credit (which shall be a Business Day);

#### (ii)     the amount thereof;

#### (iii)    the expiry date thereof (which shall not belater than the close of business on the Letter of Credit Expiration Date);

#### (iv)    the name and address of the beneficiarythereof;

#### (v)     whether the Cayman Letter of Credit is tobe issued for its own account or for the account of one of its Subsidiaries (*provided* that the Cayman Borrower shall be a co-applicant,and therefore jointly and severally liable, with respect to each Cayman Letterof Credit issued for the account of its Subsidiary);

#### (vi)    the documents to be presented by suchbeneficiary in connection with any drawing thereunder;

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#### (vii)   the full text of any certificate to bepresented by such beneficiary in connection with any drawing thereunder; and

#### (viii)  such other matters as the Issuing Bank mayrequire.

A request for an amendment, renewal or extension ofany outstanding Cayman Letter of Credit shall specify in form and detailsatisfactory to the Issuing Bank:

(i)      the Cayman Letter of Credit to be amended,renewed or extended;

(ii)     the proposed date of amendment, renewal orextension thereof (which shall be a Business Day);

(iii)    the nature of the proposed amendment,renewal or extension; and

(iv)    such other matters as the Issuing Bank mayrequire.

If requested by the Issuing Bank, the Cayman Borroweralso shall submit a letter of credit application on the Issuing Bank’s standardform in connection with any request for a Cayman Letter of Credit.  A Cayman Letter of Credit shall be issued,amended, renewed or extended only if (and, upon issuance, amendment, renewal orextension of each Cayman Letter of Credit, the Cayman Borrower shall be deemedto represent and warrant that), after giving effect to such issuance,amendment, renewal or extension, (i) the LC Exposure shall not exceed theLC Commitment, (ii) the total Revolving Exposures shall not exceed thetotal Revolving Commitments and (iii) the conditions set forth in Article IVin respect of such issuance, amendment, renewal or extension shall have beensatisfied.  Unless the Issuing Bank shallagree otherwise, no Cayman Letter of Credit shall be in an initial amount lessthan $100,000, in the case of a Commercial Letter of Credit, or $500,000, inthe case of a Standby Letter of Credit.

Upon the issuance of any Cayman Letter of Credit oramendment, renewal, extension or modification to a Letter of Credit, theIssuing Bank shall promptly notify the Administrative Agent, who shall promptlynotify each Revolving Lender, thereof, which notice shall be accompanied by acopy of such Cayman Letter of Credit or amendment, renewal, extension ormodification to a Cayman Letter of Credit and the amount of such Lender’srespective participation in such Cayman Letter of Credit pursuant to Section 2.18(A)(d).  On the first Business Day of each calendarmonth, the Issuing Bank shall provide to the Administrative Agent a reportlisting all outstanding Cayman Letters of Credit and the amounts and beneficiariesthereof and the Administrative Agent shall promptly provide such report to eachRevolving Lender.

### (c)           ExpirationDate.  Each Cayman Letter of Creditshall expire at or prior to the close of business on the earlier of (i) inthe case of a Standby Letter of Credit, (x) the date which is one yearafter the date of the issuance of such Standby Letter of Credit (or, in thecase of any renewal or extension thereof, one year after such renewal orextension) and (y) the Letter of Credit Expiration Date and (ii) inthe case of a Commercial Letter of Credit, (x) the date that is180 days after the date of issuance of such Commercial Letter of Credit(or, in the case of any renewal or extension thereof, 180 days after suchrenewal or extension) and (y) the Letter of Credit Expiration Date.

### (d)           Participations.  By the issuance of a Cayman Letter of Credit(or an amendment to a Letter of Credit increasing the amount thereof) andwithout any further action on the part of the Issuing Bank or the Lenders, theIssuing Bank hereby irrevocably grants to each Revolving Lender, and each RevolvingLender hereby acquires from the Issuing Bank, a participation in such CaymanLetter of 

 

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### Credit equal to such Revolving Lender’s Pro Rata Percentage of theaggregate amount available to be drawn under such Cayman Letter of Credit.  In consideration and in furtherance of theforegoing, each Revolving Lender hereby absolutely and unconditionally agreesto pay to the Administrative Agent, for the account of the Issuing Bank, suchRevolving Lender’s Pro Rata Percentage of each Cayman LC Disbursement made bythe Issuing Bank and not reimbursed by the Cayman Borrower on the date due asprovided in Section 2.18(e), or of any reimbursement paymentrequired to be refunded to the Cayman Borrower for any reason.  Each Revolving Lender acknowledges and agreesthat its obligation to acquire participations pursuant to this paragraph inrespect of Cayman Letters of Credit is absolute and unconditional and shall notbe affected by any circumstance whatsoever, including any amendment, renewal orextension of any Cayman Letter of Credit or the occurrence and continuance of aDefault or reduction or termination of the Commitments, or expiration,termination or cash collateralization of any Cayman Letter of Credit and thateach such payment shall be made without any offset, abatement, withholding orreduction whatsoever.

### (e)           Reimbursement.

#### (i)      If the Issuing Bank shall make any CaymanLC Disbursement in respect of a Cayman Letter of Credit, the Cayman Borrowershall reimburse such LC Disbursement by paying to the Issuing Bank an amountequal to such Cayman LC Disbursement not laterthan 3:00 p.m., New York City time, on the date that such Cayman LCDisbursement is made if the Cayman Borrower shall have received notice of suchCayman LC Disbursement prior to 11:00 a.m., New York City time, on such date,or, if such notice has not been received by the Cayman Borrower prior to suchtime on such date, then not later than 3:00 p.m., New York City time, on theBusiness Day immediately following the day that the Cayman Borrower receivessuch notice; *provided* that the Cayman Borrowermay, subject to the conditions to borrowing set forth herein, request inaccordance with Section 2.03 that such payment be financed with ABRRevolving Loans or Swingline Loans in an equivalent amount and, to the extentso financed, the Cayman Borrower obligation to make such payment shall bedischarged and replaced by the resulting ABR Revolving Loans or SwinglineLoans.

#### (ii)     If the Cayman Borrower fails to make suchpayment when due, the Issuing Bank shall notify the Administrative Agent andthe Administrative Agent shall notify each Revolving Lender of the applicableCayman LC Disbursement, the payment then due from the Cayman Borrower inrespect thereof and such Revolving Lender’s Pro Rata Percentage thereof.  Each Revolving Lender shall pay by wiretransfer of immediately available funds to the Administrative Agent not laterthan 2:00 p.m., New York City time, on such date (or, if such Revolving Lendershall have received such notice later than 12:00 noon, New York City time, onany day, not later than 11:00 a.m., New York City time, on the immediatelyfollowing Business Day), an amount equal to such Revolving Lender’s Pro RataPercentage of the unreimbursed Cayman LC Disbursement in the same manner asprovided in Section 2.02(c) with respect to Revolving Loans made bysuch Revolving Lender, and the Administrative Agent will promptly pay to theIssuing Bank the amounts so received by it from the Revolving Lenders.  The Administrative Agent will promptly pay tothe Issuing Bank any amounts received by it from the Cayman Borrower pursuantto the above paragraph prior to the time that any Revolving Lender makes anypayment pursuant to the preceding sentence and any such amounts received by theAdministrative Agent from the Cayman Borrower thereafter will be promptlyremitted by the Administrative Agent to the Revolving Lenders that shall havemade such payments and to the Issuing Bank, as appropriate.

 

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#### (iii)    If any Revolving Lender shall not have madeits Pro Rata Percentage of such LC Disbursement available to the AdministrativeAgent as provided above, each of such Revolving Lender and the Cayman Borrowerseverally agrees to pay interest on such amount, for each day from andincluding the date such amount is required to be paid in accordance with theforegoing to but excluding the date such amount is paid, to the AdministrativeAgent for the account of the Issuing Bank at (i) in the case of the CaymanBorrower, the rate per annum set forth in Section 2.18(A)(h) and(ii) in the case of such Lender, at a rate determined by the AdministrativeAgent in accordance with banking industry rules or practices on interbankcompensation.

### (f)            ObligationsAbsolute.  The Cayman ReimbursementObligation of the Cayman Borrower as provided in Section 2.18(A)(e)shall be absolute, unconditional and irrevocable, and shall be paid andperformed strictly in accordance with the terms of this Agreement under any andall circumstances whatsoever and irrespective of (i) any lack of validityor enforceability of any Letter of Credit or this Agreement, or any term or provisiontherein; (ii) any draft or other document presented under a Letter ofCredit being proved to be forged, fraudulent, invalid or insufficient in anyrespect or any statement therein being untrue or inaccurate in any respect;(iii) payment by the Issuing Bank under a Letter of Credit againstpresentation of a draft or other document that fails to comply with the termsof such Cayman Letter of Credit; (iv) any other event or circumstancewhatsoever, whether or not similar to any of the foregoing, that might, but forthe provisions of this Section 2.18(A), constitute a legal orequitable discharge of, or provide a right of setoff against, the obligationsof the Cayman Borrower hereunder; (v) the fact that a Default shall haveoccurred and be continuing; or (vi) any material adverse change in thebusiness, property, results of operations, prospects or condition, financial orotherwise, of the Cayman Borrower and its Subsidiaries.  None of the Agents, the Lenders, the IssuingBank or any of their Affiliates shall have any liability or responsibility byreason of or in connection with the issuance or transfer of any Cayman Letterof Credit or any payment or failure to make any payment thereunder(irrespective of any of the circumstances referred to in the precedingsentence), or any error, omission, interruption, loss or delay in transmissionor delivery of any draft, notice or other communication under or relating toany Cayman Letter of Credit (including any document required to make a drawing thereunder),any error in interpretation of technical terms or any consequence arising fromcauses beyond the control of the Issuing Bank; *provided*that the foregoing shall not be construed to excuse the Issuing Bank fromliability to the Cayman Borrower to the extent of any direct damages (as opposedto consequential damages, claims in respect of which are hereby waived by theCayman Borrower to the extent permitted by applicable Requirements of Law)suffered by the Cayman Borrower that are caused by the Issuing Bank’s failureto exercise care when determining whether drafts and other documents presentedunder a Cayman Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, inthe absence of gross negligence or willful misconduct on the part of theIssuing Bank (as finally determined by a court of competent jurisdiction), theIssuing Bank shall be deemed to have exercised care in each such determination.  In furtherance of the foregoing and withoutlimiting the generality thereof, the parties agree that, with respect todocuments presented which appear on their face to be in substantial compliancewith the terms of a Cayman Letter of Credit, the Issuing Bank may, in its solediscretion, either accept and make payment upon such documents withoutresponsibility for further investigation, regardless of any notice orinformation to the contrary, or refuse to accept and make payment upon suchdocuments if such documents are not in strict compliance with the terms of suchCayman Letter of Credit.

### (g)           DisbursementProcedures.  The Issuing Bank shall,promptly following its receipt thereof, examine all documents purporting torepresent a demand for payment under a Cayman Letter of Credit.  The Issuing Bank shall promptly give writtennotice to the Administrative Agent and the Cayman Borrower of such demand forpayment and whether the Issuing Bank has made or will make a Cayman LCDisbursement thereunder; *provided* thatany failure to give or delay in giving such notice shall not 

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### relieve the Cayman Borrower of its Reimbursement Obligation to theIssuing Bank and the Revolving Lenders with respect to any such LC Disbursement(other than with respect to the timing of such Reimbursement Obligation setforth in Section 2.18(A)(e)).

### (h)           InterimInterest.  If the Issuing Bank shallmake any LC Disbursement, then, unless the Cayman Borrower shall reimburse suchCayman LC Disbursement in full in accordance with Section 2.18(A)(e)(i), the unpaidamount thereof shall bear interest payable on demand, for each day from andincluding the date such Cayman LC Disbursement is made to but excluding thedate that the Cayman Borrower reimburses such Cayman LC Disbursement, at therate per annum determined pursuant to Section 2.06(c).  Interest accrued pursuant to this paragraphshall be for the account of the Issuing Bank, except that interest accrued onand after the date of payment by any Revolving Lender pursuant to Section 2.18(A)(e)to reimburse the Issuing Bank shall be for the account of such Lender to theextent of such payment.

### (i)            CashCollateralization.  If any Event ofDefault shall occur and be continuing, on the Business Day that the CaymanBorrower receives notice from the Administrative Agent or the Required Lenders(or, if the maturity of the Loans has been accelerated, Revolving Lenders withLC Exposure representing greater than 50% of the total LC Exposure with respectto Cayman Letters of Credit) demanding the deposit of cash collateral pursuantto this paragraph, the Cayman Borrower shall deposit on terms and in accountsreasonably satisfactory to the Collateral Agent, in the name of the CollateralAgent and for the benefit of the Revolving Lenders, an amount in cash equal tothe LC Exposure with respect to Cayman Letters of Credit as of such date plusany accrued and unpaid interest thereon; *provided* thatthe obligation to deposit such cash collateral shall become effectiveimmediately, and such deposit shall become immediately due and payable, withoutdemand or other notice of any kind, upon the occurrence of any Event of Defaultwith respect to the Cayman Borrower described in Section 8.01(g) or (h).  Funds so deposited shall be applied by theCollateral Agent to reimburse the Issuing Bank for Cayman LC Disbursements forwhich it has not been reimbursed and, to the extent not so applied, shall beheld for the satisfaction of outstanding Cayman Reimbursement Obligations or,if the maturity of the Loans has been accelerated (but subject to the consentof Revolving Lenders with LC Exposure representing greater than 50% of thetotal LC Exposure), be applied to satisfy other Obligations of the CaymanBorrower under this Agreement.  If theCayman Borrower is required to provide an amount of cash collateral hereunderas a result of the occurrence of an Event of Default, such amount *plus* any accrued interest or realized profits with respectto such amounts (to the extent not applied as aforesaid) shall be returned tothe Cayman Borrower within three Business Days after all Events of Default havebeen cured or waived.

### (j)            AdditionalIssuing Banks.  The Cayman Borrowermay, at any time and from time to time, designate one or more additionalRevolving Lenders to act as an issuing bank under the terms of this Agreement,with the consent of the Administrative Agent (which consent shall not be unreasonablywithheld), the Issuing Bank and such Revolving Lender(s).  Any Lender designated as an issuing bank pursuantto this paragraph (j) shall be deemed (in addition to being a RevolvingLender) to be the Issuing Bank with respect to Cayman Letters of Credit issuedor to be issued by such Revolving Lender, and all references herein and in theother Loan Documents to the term “Issuing Bank” shall, with respect to suchCayman Letters of Credit, be deemed to refer to such Revolving Lender in itscapacity as Issuing Bank, as the context shall require.

### (k)           Resignationor Removal of the Issuing Bank.  TheIssuing Bank may resign as Issuing Bank hereunder at any time upon at least30 days’ prior notice to the Lenders, the Administrative Agent and theCayman Borrower.  The Issuing Bank may bereplaced at any time by written agreement 

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### among the Cayman Borrower, each Agent, the replaced Issuing Bank andthe successor Issuing Bank.  TheAdministrative Agent shall notify the Lenders of any such replacement of theIssuing Bank or any such additional Issuing Bank.  At the time any such resignation orreplacement shall become effective, the Cayman Borrower shall pay all unpaidfees accrued for the account of the replaced Issuing Bank pursuant to Section 2.05(c).  From and after the effective date of any suchresignation or replacement or addition, as applicable, (i) the successoror additional Issuing Bank shall have all the rights and obligations of theIssuing Bank under this Agreement with respect to Cayman Letters of Credit tobe issued by it thereafter and (ii) references herein to the term “IssuingBank” shall be deemed to refer to such successor or such addition or to anyprevious Issuing Bank, or to such successor or such addition and all previousIssuing Banks, as the context shall require. After the resignation or replacement of an Issuing Bank hereunder, thereplaced Issuing Bank shall remain a party hereto and shall continue to haveall the rights and obligations of an Issuing Bank under this Agreement withrespect to Cayman Letters of Credit issued by it prior to such resignation orreplacement, but shall not be required to issue additional Cayman Letters ofCredit.  If at any time there is morethan one Issuing Bank hereunder, the Cayman Borrower may, in its discretion,select which Issuing Bank is to issue any particular Cayman Letter of Credit.

### (l)            Other.  The Issuing Bank shall be under no obligationto issue any Cayman Letter of Credit if

#### (i)      any order, judgment or decree of anyGovernmental Authority or arbitrator shall by its terms purport to enjoin orrestrain the Issuing Bank from issuing such Cayman Letter of Credit, or anyRequirement of Law applicable to the Issuing Bank or any request or directive(whether or not having the force of law) from any Governmental Authority withjurisdiction over the Issuing Bank shall prohibit, or request that the IssuingBank refrain from, the issuance of letters of credit generally or such CaymanLetter of Credit in particular or shall impose upon the Issuing Bank withrespect to such Cayman Letter of Credit any restriction, reserve or capital requirement(for which the Issuing Bank is not otherwise compensated hereunder) not ineffect on the Closing Date, or shall impose upon the Issuing Bank anyunreimbursed loss, cost or expense which was not applicable on the Closing Dateand which the Issuing Bank in good faith deems material to it; or

#### (ii)     the issuance of such Cayman Letter ofCredit would violate one or more policies of the Issuing Bank.

The Issuing Bank shall be under no obligation to amendany Cayman Letter of Credit if (A) the Issuing Bank would have noobligation at such time to issue such Cayman Letter of Credit in its amendedform under the terms hereof, or (B) the beneficiary of such Cayman Letterof Credit does not accept the proposed amendment to such Cayman Letter ofCredit.

**B.            US Letters of Credit**

### (a)           General.  Subject to the terms and conditions set forthherein, the US Borrower may request the Issuing Bank, and the Issuing Bankagrees, to issue Letters of Credit for its own account or the account of itsSubsidiary in a form reasonably acceptable to the Administrative Agent and theIssuing Bank, at any time and from time to time during the RevolvingAvailability Period (*provided* thatthe US Borrower shall be a co-applicant, and be jointly and severally liable,with respect to each Letter of Credit issued for the account of itsSubsidiary).  The Issuing Bank shall haveno obligation to issue, and the US Borrower shall not request the issuance of,any Letter of Credit at any time if after giving effect to such issuance, theLC Exposure would exceed the LC Commitment or the total Revolving Exposure 

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### would exceed the total Revolving Commitments.  In the event of any inconsistency between theterms and conditions of this Agreement and the terms and conditions of any formof letter of credit application or other agreement submitted by the US Borrowerto, or entered into by the US Borrower with, the Issuing Bank relating to anyLetter of Credit, the terms and conditions of this Agreement shall control.

### (b)           Requestfor Issuance, Amendment, Renewal, Extension; Certain Conditions and Notices.  To request the issuance of a US Letter ofCredit or the amendment, renewal or extension of an outstanding US Letter ofCredit, the US Borrower shall deliver, by hand or telecopier (or transmit byelectronic communication, if arrangements for doing so have been approved bythe Issuing Bank), a US LC Request to the Issuing Bank and the AdministrativeAgent not later than 11:00 a.m. on the third Business Day preceding the requesteddate of issuance, amendment, renewal or extension (or such later date and timeas is acceptable to the Issuing Bank).

A request for an initial issuance of a US Letter ofCredit shall specify in form and detail satisfactory to the Issuing Bank:

#### (i)      the proposed issuance date of therequested US Letter of Credit (which shall be a Business Day);

#### (ii)     the amount thereof;

#### (iii)    the expiry date thereof (which shall not be laterthan the close of business on the Letter of Credit Expiration Date);

#### (iv)    the name and address of the beneficiarythereof;

#### (v)     whether the US Letter of Credit is to beissued for its own account or for the account of one of its Subsidiaries (*provided* that the US Borrower shall be a co-applicant, andtherefore jointly and severally liable, with respect to each US Letter ofCredit issued for the account of its Subsidiary);

#### (vi)    the documents to be presented by suchbeneficiary in connection with any drawing thereunder;

#### (vii)   the full text of any certificate to bepresented by such beneficiary in connection with any drawing thereunder; and

#### (viii)  such other matters as the Issuing Bank mayrequire.

A request for an amendment, renewal or extension ofany outstanding US Letter of Credit shall specify in form and detailsatisfactory to the Issuing Bank:

(i)      the US Letter of Credit to be amended,renewed or extended;

(ii)     the proposed date of amendment, renewal orextension thereof (which shall be a Business Day);

(iii)    the nature of the proposed amendment,renewal or extension; and

(iv)    such other matters as the Issuing Bank mayrequire.

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If requested by the Issuing Bank, the US Borrower alsoshall submit a letter of credit application on the Issuing Bank’s standard formin connection with any request for a US Letter of Credit.  A US Letter of Credit shall be issued,amended, renewed or extended only if (and, upon issuance, amendment, renewal orextension of each US Letter of Credit, the US Borrower shall be deemed torepresent and warrant that), after giving effect to such issuance, amendment,renewal or extension, (i) the LC Exposure shall not exceed the LCCommitment, (ii) the total Revolving Exposures shall not exceed the totalRevolving Commitments and (iii) the conditions set forth in Article IVin respect of such issuance, amendment, renewal or extension shall have beensatisfied.  Unless the Issuing Bank shallagree otherwise, no US Letter of Credit shall be in an initial amount less than$100,000, in the case of a Commercial Letter of Credit, or $500,000, in thecase of a Standby Letter of Credit.

Upon the issuance of any US Letter of Credit oramendment, renewal, extension or modification to a Letter of Credit, theIssuing Bank shall promptly notify the Administrative Agent, who shall promptlynotify each Revolving Lender, thereof, which notice shall be accompanied by acopy of such US Letter of Credit or amendment, renewal, extension ormodification to a US Letter of Credit and the amount of such Lender’srespective participation in such US Letter of Credit pursuant to Section 2.18(B)(d).  On the first Business Day of each calendar month,the Issuing Bank shall provide to the Administrative Agent a report listing alloutstanding US Letters of Credit and the amounts and beneficiaries thereof andthe Administrative Agent shall promptly provide such report to each RevolvingLender.

### (c)           ExpirationDate.  Each US Letter of Credit shallexpire at or prior to the close of business on the earlier of (i) in thecase of a Standby Letter of Credit, (x) the date which is one year afterthe date of the issuance of such Standby Letter of Credit (or, in the case ofany renewal or extension thereof, one year after such renewal or extension) and(y) the Letter of Credit Expiration Date and (ii) in the case of aCommercial Letter of Credit, (x) the date that is 180 days after thedate of issuance of such Commercial Letter of Credit (or, in the case of anyrenewal or extension thereof, 180 days after such renewal or extension)and (y) the Letter of Credit Expiration Date.

### (d)           Participations.  By the issuance of a US Letter of Credit (oran amendment to a Letter of Credit increasing the amount thereof) and withoutany further action on the part of the Issuing Bank or the Lenders, the IssuingBank hereby irrevocably grants to each Revolving Lender, and each RevolvingLender hereby acquires from the Issuing Bank, a participation in such US Letterof Credit equal to such Revolving Lender’s Pro Rata Percentage of the aggregateamount available to be drawn under such US Letter of Credit.  In consideration and in furtherance of theforegoing, each Revolving Lender hereby absolutely and unconditionally agreesto pay to the Administrative Agent, for the account of the Issuing Bank, suchRevolving Lender’s Pro Rata Percentage of each US LC Disbursement made by theIssuing Bank and not reimbursed by the US Borrower on the date due as providedin Section 2.18(e), or of any reimbursement payment required to berefunded to the US Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation toacquire participations pursuant to this paragraph in respect of US Letters ofCredit is absolute and unconditional and shall not be affected by any circumstancewhatsoever, including any amendment, renewal or extension of any US Letter ofCredit or the occurrence and continuance of a Default or reduction ortermination of the Commitments, or expiration, termination or cashcollateralization of any US Letter of Credit and that each such payment shallbe made without any offset, abatement, withholding or reduction whatsoever.

###  

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### (e)           Reimbursement.

#### (i)      If the Issuing Bank shall make any US LCDisbursement in respect of a US Letter of Credit, the US Borrower shallreimburse such LC Disbursement by paying to the Issuing Bank an amount equal tosuch US LC Disbursement not laterthan 3:00 p.m., New York City time, on the date that such US LC Disbursement ismade if the US Borrower shall have received notice of such US LC Disbursementprior to 11:00 a.m., New York City time, on such date, or, if such notice hasnot been received by the US Borrower prior to such time on such date, then notlater than 3:00 p.m., New York City time, on the Business Day immediatelyfollowing the day that the US Borrower receives such notice; *provided* that the US Borrower may, subject to the conditionsto borrowing set forth herein, request in accordance with Section 2.03that such payment be financed with ABR Revolving Loans or Swingline Loans in anequivalent amount and, to the extent so financed, the US Borrower obligation tomake such payment shall be discharged and replaced by the resulting ABRRevolving Loans or Swingline Loans.

#### (ii)     If the US Borrower fails to make suchpayment when due, the Issuing Bank shall notify the Administrative Agent andthe Administrative Agent shall notify each Revolving Lender of the applicableUS LC Disbursement, the payment then due from the US Borrower in respectthereof and such Revolving Lender’s Pro Rata Percentage thereof.  Each Revolving Lender shall pay by wiretransfer of immediately available funds to the Administrative Agent not laterthan 2:00 p.m., New York City time, on such date (or, if such Revolving Lendershall have received such notice later than 12:00 noon, New York City time, onany day, not later than 11:00 a.m., New York City time, on the immediatelyfollowing Business Day), an amount equal to such Revolving Lender’s Pro RataPercentage of the unreimbursed US LC Disbursement in the same manner asprovided in Section 2.02(c) with respect to Revolving Loans made bysuch Revolving Lender, and the Administrative Agent will promptly pay to theIssuing Bank the amounts so received by it from the Revolving Lenders.  The Administrative Agent will promptly pay tothe Issuing Bank any amounts received by it from the US Borrower pursuant tothe above paragraph prior to the time that any Revolving Lender makes anypayment pursuant to the preceding sentence and any such amounts received by theAdministrative Agent from the US Borrower thereafter will be promptly remittedby the Administrative Agent to the Revolving Lenders that shall have made suchpayments and to the Issuing Bank, as appropriate.

#### (iii)    If any Revolving Lender shall not have madeits Pro Rata Percentage of such LC Disbursement available to the AdministrativeAgent as provided above, each of such Revolving Lender and the US Borrowerseverally agrees to pay interest on such amount, for each day from andincluding the date such amount is required to be paid in accordance with theforegoing to but excluding the date such amount is paid, to the AdministrativeAgent for the account of the Issuing Bank at (i) in the case of the USBorrower, the rate per annum set forth in Section 2.18(B)(h) and(ii) in the case of such Lender, at a rate determined by theAdministrative Agent in accordance with banking industry rules or practices oninterbank compensation.

### (f)            ObligationsAbsolute.  The US ReimbursementObligation of the US Borrower as provided in Section 2.18(B)(e)shall be absolute, unconditional and irrevocable, and shall be paid and performedstrictly in accordance with the terms of this Agreement under any and allcircumstances whatsoever and irrespective of (i) any lack of validity orenforceability of any Letter of Credit or this Agreement, or any term or provisiontherein; (ii) any draft or other document presented under a Letter ofCredit being proved to be forged, fraudulent, invalid or insufficient in anyrespect or any statement therein being untrue or inaccurate in any respect;(iii) payment by the Issuing Bank under a Letter of Credit 

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### against presentation of a draft or other document that fails to complywith the terms of such US Letter of Credit; (iv) any other event orcircumstance whatsoever, whether or not similar to any of the foregoing, thatmight, but for the provisions of this Section 2.18(B), constitute alegal or equitable discharge of, or provide a right of setoff against, theobligations of the US Borrower hereunder; (v) the fact that a Defaultshall have occurred and be continuing; or (vi) any material adverse changein the business, property, results of operations, prospects or condition,financial or otherwise, of the US Borrower and its Subsidiaries.  None of the Agents, the Lenders, the IssuingBank or any of their Affiliates shall have any liability or responsibility byreason of or in connection with the issuance or transfer of any US Letter ofCredit or any payment or failure to make any payment thereunder (irrespectiveof any of the circumstances referred to in the preceding sentence), or anyerror, omission, interruption, loss or delay in transmission or delivery of anydraft, notice or other communication under or relating to any US Letter ofCredit (including any document required to make a drawing thereunder), anyerror in interpretation of technical terms or any consequence arising fromcauses beyond the control of the Issuing Bank; *provided*that the foregoing shall not be construed to excuse the Issuing Bank fromliability to the US Borrower to the extent of any direct damages (as opposed toconsequential damages, claims in respect of which are hereby waived by the USBorrower to the extent permitted by applicable Requirements of Law) suffered bythe US Borrower that are caused by the Issuing Bank’s failure to exercise carewhen determining whether drafts and other documents presented under a US Letterof Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of grossnegligence or willful misconduct on the part of the Issuing Bank (as finallydetermined by a court of competent jurisdiction), the Issuing Bank shall bedeemed to have exercised care in each such determination.  In furtherance of the foregoing and withoutlimiting the generality thereof, the parties agree that, with respect todocuments presented which appear on their face to be in substantial compliancewith the terms of a US Letter of Credit, the Issuing Bank may, in its solediscretion, either accept and make payment upon such documents withoutresponsibility for further investigation, regardless of any notice orinformation to the contrary, or refuse to accept and make payment upon suchdocuments if such documents are not in strict compliance with the terms of suchUS Letter of Credit.

### (g)           DisbursementProcedures.  The Issuing Bank shall,promptly following its receipt thereof, examine all documents purporting torepresent a demand for payment under a US Letter of Credit.  The Issuing Bank shall promptly give writtennotice to the Administrative Agent and the US Borrower of such demand forpayment and whether the Issuing Bank has made or will make a US LC Disbursementthereunder; *provided* that any failure to give ordelay in giving such notice shall not relieve the US Borrower of itsReimbursement Obligation to the Issuing Bank and the Revolving Lenders with respectto any such LC Disbursement (other than with respect to the timing of suchReimbursement Obligation set forth in Section 2.18(B)(e)).

### (h)           InterimInterest.  If the Issuing Bank shallmake any LC Disbursement, then, unless the US Borrower shall reimburse such USLC Disbursement in full in accordance with Section 2.18(B)(e)(i), theunpaid amount thereof shall bear interest payable on demand, for each day fromand including the date such US LC Disbursement is made to but excluding thedate that the US Borrower reimburses such US LC Disbursement, at the rate perannum determined pursuant to Section 2.06(c).  Interest accrued pursuant to this paragraphshall be for the account of the Issuing Bank, except that interest accrued onand after the date of payment by any Revolving Lender pursuant to Section 2.18(B)(e)to reimburse the Issuing Bank shall be for the account of such Lender to theextent of such payment.

### (i)            CashCollateralization.  If any Event ofDefault shall occur and be continuing, on the Business Day that the US Borrowerreceives notice from the Administrative Agent or the Required Lenders (or, ifthe maturity of the Loans has been accelerated, Revolving Lenders with LCExposure 

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### representing greater than 50% of the total LC Exposure with respect toUS Letters of Credit) demanding the deposit of cash collateral pursuant to thisparagraph, the US Borrower shall deposit on terms and in accounts reasonablysatisfactory to the Collateral Agent, in the name of the Collateral Agent andfor the benefit of the Revolving Lenders, an amount in cash equal to the LCExposure with respect to US Letters of Credit as of such date plus any accruedand unpaid interest thereon; *provided* thatthe obligation to deposit such cash collateral shall become effectiveimmediately, and such deposit shall become immediately due and payable, withoutdemand or other notice of any kind, upon the occurrence of any Event of Defaultwith respect to the US Borrower described in Section 8.01(g) or (h).  Funds so deposited shall be applied by theCollateral Agent to reimburse the Issuing Bank for US LC Disbursements forwhich it has not been reimbursed and, to the extent not so applied, shall beheld for the satisfaction of outstanding US Reimbursement Obligations or, ifthe maturity of the Loans has been accelerated (but subject to the consent of RevolvingLenders with LC Exposure representing greater than 50% of the total LCExposure), be applied to satisfy other Obligations of the US Borrower underthis Agreement.  If the US Borrower is requiredto provide an amount of cash collateral hereunder as a result of the occurrenceof an Event of Default, such amount *plus* any accruedinterest or realized profits with respect to such amounts (to the extent notapplied as aforesaid) shall be returned to the US Borrower within threeBusiness Days after all Events of Default have been cured or waived.

### (j)            AdditionalIssuing Banks.  The US Borrower may,at any time and from time to time, designate one or more additional RevolvingLenders to act as an issuing bank under the terms of this Agreement, with theconsent of the Administrative Agent (which consent shall not be unreasonablywithheld), the Issuing Bank and such Revolving Lender(s).  Any Lender designated as an issuing bank pursuantto this paragraph (j) shall be deemed (in addition to being a RevolvingLender) to be the Issuing Bank with respect to US Letters of Credit issued orto be issued by such Revolving Lender, and all references herein and in theother Loan Documents to the term “Issuing Bank” shall, with respect to such USLetters of Credit, be deemed to refer to such Revolving Lender in its capacityas Issuing Bank, as the context shall require.

### (k)           Resignationor Removal of the Issuing Bank.  TheIssuing Bank may resign as Issuing Bank hereunder at any time upon at least30 days’ prior notice to the Lenders, the Administrative Agent and the USBorrower.  The Issuing Bank may bereplaced at any time by written agreement among the US Borrower, each Agent,the replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify theLenders of any such replacement of the Issuing Bank or any such additionalIssuing Bank.  At the time any suchresignation or replacement shall become effective, the US Borrower shall payall unpaid fees accrued for the account of the replaced Issuing Bank pursuantto Section 2.05(c).  From andafter the effective date of any such resignation or replacement or addition, asapplicable, (i) the successor or additional Issuing Bank shall have allthe rights and obligations of the Issuing Bank under this Agreement withrespect to US Letters of Credit to be issued by it thereafter and(ii) references herein to the term “Issuing Bank” shall be deemed to referto such successor or such addition or to any previous Issuing Bank, or to suchsuccessor or such addition and all previous Issuing Banks, as the context shallrequire.  After the resignation or replacementof an Issuing Bank hereunder, the replaced Issuing Bank shall remain a partyhereto and shall continue to have all the rights and obligations of an IssuingBank under this Agreement with respect to US Letters of Credit issued by itprior to such resignation or replacement, but shall not be required to issueadditional US Letters of Credit.  If atany time there is more than one Issuing Bank hereunder, the US Borrower may, inits discretion, select which Issuing Bank is to issue any particular US Letterof Credit.

### (l)            Other.  The Issuing Bank shall be under no obligationto issue any US Letter of Credit if

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#### (i)      any order, judgment or decree of anyGovernmental Authority or arbitrator shall by its terms purport to enjoin orrestrain the Issuing Bank from issuing such US Letter of Credit, or anyRequirement of Law applicable to the Issuing Bank or any request or directive(whether or not having the force of law) from any Governmental Authority withjurisdiction over the Issuing Bank shall prohibit, or request that the IssuingBank refrain from, the issuance of letters of credit generally or such USLetter of Credit in particular or shall impose upon the Issuing Bank with respectto such US Letter of Credit any restriction, reserve or capital requirement(for which the Issuing Bank is not otherwise compensated hereunder) not ineffect on the Closing Date, or shall impose upon the Issuing Bank any unreimbursedloss, cost or expense which was not applicable on the Closing Date and whichthe Issuing Bank in good faith deems material to it; or

#### (ii)     the issuance of such US Letter of Creditwould violate one or more policies of the Issuing Bank.

The Issuing Bank shall be under no obligation to amendany US Letter of Credit if (A) the Issuing Bank would have no obligationat such time to issue such US Letter of Credit in its amended form under theterms hereof, or (B) the beneficiary of such US Letter of Credit does notaccept the proposed amendment to such US Letter of Credit.

**SECTION 2.19           Increasein Commitments**.

### (a)           BorrowerRequest.  The US Borrower may bywritten notice to the Administrative Agent elect to request prior to the FinalMaturity Date, an increase to the existing Revolving Commitments by an amountnot in excess of $75.0 million in the aggregate and not less than $10.0 millionindividually; *provided, however,*that the USBorrower may not make more than three (3) such increase requests during the termof this Agreement.  Each such noticeshall specify (i) the date (each, an “**Increase Effective Date**”)on which the US Borrower proposes that the increased or new Commitments shallbe effective, which shall be a date not less than 10 Business Days after thedate on which such notice is delivered to the Administrative Agent and (ii) theidentity of each Eligible Assignee to whom the US Borrower proposes any portionof such increased or new Commitments be allocated and the amounts of such allocations;*provided* that any existing Lenderapproached to provide all or a portion of the increased or new Commitments mayelect or decline, in its sole discretion, to provide such increased or newCommitment.

### (b)           Conditions.  The increased or new Commitments shall becomeeffective, as of such Increase Effective Date; *provided*that:

#### (i)      each of the conditions set forth in Section4.02 shall be satisfied;

#### (ii)     no Default shall have occurred and becontinuing or would result from the borrowings to be made on the Increase EffectiveDate;

#### (iii)    after giving pro forma effect to theborrowings to be made on the Increase Effective Date and to any change inConsolidated EBITDA and any increase in Indebtedness resulting from theconsummation of any Permitted Acquisition concurrently with such borrowings asof the date of the most recent financial statements delivered pursuant to Section5.01(a) or (b), the Borrowers shall be in compliance with each ofthe covenants set forth in Section 6.10;

####  

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#### (iv)    Borrowers shall make any payments requiredpursuant to Section 2.13 in connection with any adjustment of RevolvingLoans pursuant to Section 2.19(d); and

#### (v)     Borrowers shall deliver or cause to bedelivered any legal opinions or other documents reasonably requested by theAdministrative Agent in connection with any such transaction.

### (c)           Termsof New Loans and Commitments.  Theterms and provisions of Loans made pursuant to the new Commitments shall beidentical to the terms and provisions of Revolving Loans made pursuant to Commitmentsas in effect prior to an Increase Effective Date.

The increased or new Commitments shall be effected bya joinder agreement (the “**Increase Joinder**”)executed by the Borrowers, the Administrative Agent and each Lender making suchincreased or new Commitment, in form and substance satisfactory to each ofthem.  The Increase Joinder may, withoutthe consent of any other Lenders, effect such amendments to this Agreement andthe other Loan Documents as may be necessary or appropriate, in the opinion ofthe Administrative Agent, to effect the provisions of this Section 2.19.  In addition, unless otherwise specificallyprovided herein, all references in Loan Documents to Revolving Loans shall bedeemed, unless the context otherwise requires, to include references to RevolvingLoans made pursuant to new Commitments.

### (d)           Adjustmentof Revolving Loans.  Each of theRevolving Lenders prior to the relevant Increase Effective Date (the “**Pre-Increase Revolving Lenders**”)**shall assign to any Revolving Lender which is acquiring anew or additional Revolving Commitment on the Increase Effective Date (the “**Post-Increase Revolving Lenders**”), and suchPost-Increase Revolving Lenders shall purchase from each Pre-Increase RevolvingLender, at the principal amount thereof, such interests in the Revolving Loansand participation interests in LC Exposure and Swingline Loans outstanding onsuch Increase Effective Date as shall be necessary in order that, after givingeffect to all such assignments and purchases, such Revolving Loans and participationinterests in LC Exposure and Swingline Loans will be held by Pre-IncreaseRevolving Lenders and Post-Increase Revolving Lenders ratably in accordancewith their Revolving Commitments after giving effect to such increased RevolvingCommitments.

### (e)           Equaland Ratable Benefit.  The Loans andCommitments established pursuant to this paragraph shall constitute Loans andCommitments under, and shall be entitled to all the benefits and subject to allof the liabilities afforded and imposed by, this Agreement and the other LoanDocuments, and shall, without limiting the foregoing, benefit equally andratably from the Guarantees and security interests created by the SecurityDocuments.  The Loan Parties shall takeany actions reasonably required by the Administrative Agent to ensure and/ordemonstrate that the Lien and security interests granted by the SecurityDocuments continue to be perfected under the UCC or otherwise after givingeffect to the establishment of any such new Commitments.

# **ARTICLEIII**

# **REPRESENTATIONSAND WARRANTIES**

Each Domestic Loan Party represents and warrants tothe Administrative Agent, the Collateral Agent, the Issuing Bank and each ofthe Lenders (with references to the Companies being references thereto aftergiving effect to the Transactions unless otherwise expressly stated) withrespect to all Companies, and each Foreign Loan Party represents and warrantsto the Administrative Agent, the Collateral Agent, the Issuing Bank and each ofthe Lenders (with references to the Companies being 

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references thereto after giving effect to theTransactions unless otherwise expressly stated) only with respect to allForeign Loan Parties that:

**SECTION 3.01     Organization; Powers**.  Each Company (a) is duly organized andvalidly existing under the laws of the jurisdiction of its organization,(b) has all requisite power and authority to carry on its business as nowconducted and to own and lease its property and (c) is qualified and ingood standing (to the extent such concept is applicable in the applicablejurisdiction) to do business in every jurisdiction where such qualification isrequired, except in such jurisdictions where the failure to so qualify or be ingood standing, individually or in the aggregate, could not reasonably beexpected to result in a Material Adverse Effect.  There is no existing default under anyOrganizational Document of any such Company or any event which, with the givingof notice or passage of time or both, would constitute a default by any partythereunder.

**SECTION 3.02     Authorization; Enforceability**.  The Transactions to be entered into by eachsuch Loan Party are within such Loan Party’s powers and have been dulyauthorized by all necessary action on the part of such Loan Party.  This Agreement has been duly executed anddelivered by each such Loan Party and constitutes, and each other Loan Documentto which any such Loan Party is to be a party, when executed and delivered bysuch Loan Party, will constitute, a legal, valid and binding obligation of suchLoan Party, enforceable in accordance with its terms, subject to applicablebankruptcy, insolvency, reorganization, moratorium or other laws affectingcreditors’ rights generally and subject to general principles of equity,regardless of whether considered in a proceeding in equity or at law.

**SECTION 3.03     No Conflicts**.  Except as set forth on Schedule 3.03,the Transactions (a) do not require any consent or approval of, registrationor filing with, or any other action by, any Governmental Authority, except(i) such as have been obtained or made and are in full force and effect,(ii) filings necessary to perfect Liens created by the Loan Documents and(iii) consents, approvals, registrations, filings, permits or actions thefailure to obtain or perform which could not reasonably be expected to resultin a Material Adverse Effect, (b) will not violate the OrganizationalDocuments of any such Company, (c) will not violate any Requirement of Law,(d) will not violate or result in a default or require any consent orapproval under any indenture, agreement or other instrument binding upon anysuch Company or its property, or give rise to a right thereunder to require anypayment to be made by any such Company, except for violations, defaults or thecreation of such rights that could not reasonably be expected to result in aMaterial Adverse Effect, and (e) will not result in the creation or impositionof any Lien on any property of any such Company, except Liens created by theLoan Documents and Permitted Liens.

**SECTION3.04     Financial Statements;Projections**.

### (a)           HistoricalFinancial Statements.  US Borrowerhas heretofore delivered to the Lenders the consolidated balance sheets andrelated statements of income, stockholders’ equity and cash flows of Borrowers(i) as of and for the fiscal years ended December 31, 2003, 2004 and 2005,audited by and accompanied by the unqualified opinion of Borrowers’ independentpublic accountants at such dates, and (ii) as of and for the six-monthperiod ended June 30, 2006 and for the comparable period of the precedingfiscal year, in each case, certified by the chief financial officer ofBorrowers.  Such financial statements andall financial statements delivered pursuant to Sections 5.01(a), (b)and (c) have been prepared in accordance with GAAP and present fairlyand accurately the financial condition and results of operations and cash flowsof Borrowers as of the dates and for the periods to which they relate.

###  

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### (b)           NoLiabilities.  Except as set forth inthe financial statements referred to in Section 3.04(a), there are noliabilities of any Company of any kind, whether accrued, contingent, absolute,determined, determinable or otherwise, which could reasonably be expected toresult in a material adverse change in the business, property, results ofoperations, prospects or condition, financial or otherwise, of such Company,and there is no existing condition, situation or set of circumstances whichcould reasonably be expected to result in such a liability, other thanliabilities under the Loan Documents. Since March 31, 2006, there has been no event, change, circumstance oroccurrence that, individually or in the aggregate, has had or could reasonablybe expected to result in a material adverse change in the business, property,results of operations, prospects or condition, financial or otherwise, of suchCompany.

### (c)           Forecasts.  The forecasts of financial performance of theUS Borrower and its Subsidiaries furnished to the Lenders have been prepared ingood faith by such Borrowers and based on assumptions believed by the US Borrowerto be reasonable.

**SECTION3.05     Properties**.

### (a)           Generally.  Each Company has good title to, or valid leaseholdinterests in, all its property material to its business, free and clear of allLiens except for, in the case of Collateral, Permitted Collateral Liens and, inthe case of all other material property, Permitted Liens and minorirregularities or deficiencies in title that, individually or in the aggregate,do not interfere with its ability to conduct its business as currently conductedor to utilize such property for its intended purpose.  The property of such Companies (including,without limitation, those licensed, leased, or which, by contract, theCompanies are entitled to utilize), taken as a whole, (i) is in goodoperating order, condition and repair (ordinary wear and tear excepted) and(ii) constitutes all the property which is required for the business andoperations of such Companies as presently conducted.

### (b)           RealProperty.  Schedules 8(a) and 8(b)to the Perfection Certificate dated the Closing Date contain a true andcomplete list of each interest in Real Property (i) owned by any such Companyas of the date hereof and describes the type of interest therein held by suchCompany and whether such owned Real Property is leased by such Company to aPerson and if leased whether the underlying Lease contains any option topurchase all or any portion of such Real Property or any interest therein orcontains any right of first refusal relating to any sale of such Real Propertyor any portion thereof or interest therein and (ii) leased, subleased orotherwise occupied or utilized by any such Company, as lessee, sublessee,franchisee or licensee, as of the date hereof and describes the type ofinterest therein held by such Company and, in each of the cases described inclauses (i) and (ii) of this Section 3.05(b), whether any Leaserequires the consent of the landlord or tenant thereunder, or other partythereto, to the Transactions.

### (c)           NoCasualty Event.  No such Company hasreceived any notice of, nor has any knowledge of, the occurrence or pendency orcontemplation of any Casualty Event affecting all or any portion of itsproperty.  No Mortgage encumbers improvedReal Property that is located in an area that has been identified by theSecretary of Housing and Urban Development as an area having special floodhazards within the meaning of the National Flood Insurance Act of 1968 unlessflood insurance available under such Act has been obtained in accordance with Section5.04.

### (d)           Collateral.  Each such Company owns or has rights to useall of the Collateral and all rights with respect to any of the foregoing usedin, necessary for or material to each such Company’s business as currently conducted.  The use by each Company of such Collateraland all such rights with respect to the foregoing do not infringe on the rightsof any person other than such 

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### infringement which could not, individually or in the aggregate,reasonably be expected to result in a Material Adverse Effect.  No claim has been made and remains outstandingthat any such Company’s use of any Collateral does or may violate the rights ofany third party that could, individually or in the aggregate, reasonably beexpected to result in a Material Adverse Effect.

**SECTION3.06     Intellectual Property**.

### (a)           Ownership/NoClaims.  Each such Loan Party owns,or is licensed to use, all Intellectual Property necessary for the conduct ofits business as currently conducted, except for those the failure to own or licensewhich, individually or in the aggregate, could not reasonably be expected toresult in a Material Adverse Effect.  Noclaim has been asserted and is pending by any person challenging or questioningthe use of any such Intellectual Property or the validity or effectiveness ofany such Intellectual Property, nor does any such Loan Party know of any validbasis for any such claim.  The use ofsuch Intellectual Property by each Loan Party does not infringe the rights ofany person, except for such claims and infringements that, individually or inthe aggregate, could not reasonably be expected to result in a material adversechange in the business, property, results of operations, prospects orcondition, financial or otherwise, of such Company.

### (b)           Registrations.  Except pursuant to licenses and other useragreements entered into by each Loan Party in the ordinary course of businessthat are listed in Schedule 12(a) or 12(b) to the PerfectionCertificate, on and as of the date hereof (i) except as set forth in Schedule3.6(b), each such Loan Party owns and possesses the right to use, and hasdone nothing to authorize or enable any other person that is not an Affiliateof such Loan Party to use, any copyright, patent or trademark (as such termsare defined in the Security Agreement) listed in Schedule 12(a) or 12(b)to the Perfection Certificate and (ii) all registrations listed in Schedule12(a) or 12(b) to the Perfection Certificate are valid and in fullforce and effect.

### **(c)          **NoViolations or Proceedings.  To each suchLoan Party’s knowledge, on and as of the date hereof, there is no materialviolation by others of any right of such Loan Party with respect to anycopyright, patent or trademark listed in Schedule 12(a) or 12(b)to the Perfection Certificate, pledged by it under the name of such Loan Partyexcept as may be set forth on Schedule 3.06(c).

**SECTION3.07     Equity Interests andSubsidiaries**.

### (a)           EquityInterests.  Schedules 1(a) and10(a) to the Perfection Certificate dated the Closing Date set forth alist of (i) all the Subsidiaries of the US Borrower and theirjurisdictions of organization as of the Closing Date and (ii) the numberof each class of its Equity Interests authorized, and the number outstanding,on the Closing Date and the number of shares covered by all outstandingoptions, warrants, rights of conversion or purchase and similar rights at theClosing Date.  All Equity Interests ofeach Company are duly and validly issued and are fully paid and non-assessable,and, other than the Equity Interests of the US Borrower, are owned by the USBorrower, directly or indirectly through Wholly Owned Subsidiaries.  Each Loan Party is the record and beneficialowner of, and has good and marketable title to, the Equity Interests pledged byit under the Security Agreement, free of any and all Liens, rights or claims ofother persons, except the security interest created by the Security Agreement,and there are no outstanding warrants, options or other rights to purchase, orshareholder, voting trust or similar agreements outstanding with respect to, orproperty that is convertible into, or that requires the issuance or sale of,any such Equity Interests.

###  

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### (b)           NoConsent of Third Parties Required. No consent of any person including any other general or limited partner,any other member of a limited liability company, any other shareholder or anyother trust beneficiary is necessary or reasonably desirable (from theperspective of a secured party) in connection with the creation, perfection orfirst priority status of the security interest of the Collateral Agent in anyEquity Interests pledged to the Collateral Agent for the benefit of the SecuredParties under the Security Agreement or the exercise by the Collateral Agent ofthe voting or other rights provided for in the Security Agreement or theexercise of remedies in respect thereof.

### (c)           OrganizationalChart.  An accurate organizationalchart, showing the ownership structure of the US Borrower and each Subsidiaryon the Closing Date, and after giving effect to the Transactions, is set forthon Schedule 10(a) to the Perfection Certificate dated the Closing Date.

**SECTION 3.08     Litigation; Compliance with Laws**.  There are no actions, suits or proceedings atlaw or in equity by or before any Governmental Authority now pending or, to theknowledge of any such Company, threatened against or affecting any such Companyor any business, property or rights of any Company (i) that involve anyLoan Document or any of the Transactions or (ii) as to which there is areasonable possibility of an adverse determination and that, if adverselydetermined, could reasonably be expected, individually or in the aggregate, toresult in a Material Adverse Effect. Except for matters covered by Section 3.18, no such Companyor any of its property is in violation of, nor will the continued operation ofits property as currently conducted violate, any Requirements of Law (includingany zoning or building ordinance, code or approval or any building permits) orany restrictions of record or agreements affecting any such Company’s RealProperty or is in default with respect to any Requirement of Law, where suchviolation or default, individually or in the aggregate, could reasonably beexpected to result in a Material Adverse Effect.

**SECTION 3.09     Agreements**.  No such Company is a party to any agreementor instrument or subject to any corporate or other constitutional restrictionthat has resulted or could reasonably be expected to result in a MaterialAdverse Effect.  No such Company is indefault in any manner under any provision of any indenture or other agreementor instrument evidencing Indebtedness, or any other agreement or instrument towhich it is a party or by which it or any of its property is or may be bound,where such default could reasonably be expected to result in a Material AdverseEffect, and no condition exists which, with the giving of notice or the lapseof time or both, would constitute such a default.  Schedule 3.09 accurately andcompletely lists all material agreements (other than leases of Real Propertyset forth on Schedule 8(a) or 8(b) to the Perfection Certificatedated the Closing Date) to which any such Company is a party which are ineffect on the date hereof in connection with the operation of the businessconducted thereby and the Borrowers have delivered to the Administrative Agentcomplete and correct copies of all such material agreements, including anyamendments, supplements or modifications with respect thereto, and all suchagreements are in full force and effect.

**SECTION 3.10     Federal Reserve Regulations**.  No such Company is engaged principally, or asone of its important activities, in the business of extending credit for thepurpose of buying or carrying Margin Stock. No part of the proceeds of any Loan or any Letter of Credit will beused, whether directly or indirectly, and whether immediately, incidentally orultimately, for any purpose that entails a violation of, or that isinconsistent with, the provisions of the regulations of the Board, includingRegulation T, U or X.  The pledge of theSecurities Collateral pursuant to the Security Agreement does not violate suchregulations.

 

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**SECTION 3.11     Investment Company Act**.  No Company is an “investment company” or acompany “controlled” by an “investment company,” as defined in, or subject toregulation under, the Investment Company Act of 1940, as amended.

**SECTION 3.12     Use of Proceeds**.  The Borrowers will use the proceeds of theRevolving Loans and Swingline Loans on and after the Closing Date for generalcorporate purposes, including, without limitation, (a) to effect PermittedAcquisitions, and (b) to pay for any put of the Convertible Bonds; *provided, however,* that if proceeds of any Loan are used, inwhole or in part, for any transaction described in the foregoing clause (a) or(b), after giving Pro Forma effect to such transaction and to such Loan, thesum of (i) the Companies’ cash and Cash Equivalents plus (ii) the excess of thetotal Revolving Commitments then in effect over the total Revolving Exposureshall be greater than or equal to 20% of the total Revolving Commitments thenin effect.

**SECTION 3.13     Taxes**.  Each such Company has (a) timely filedor caused to be timely filed all federal Tax Returns and all material state,local and foreign Tax Returns or materials required to have been filed by itand all such Tax Returns are true and correct in all material respects and(b) duly and timely paid, collected or remitted or caused to be duly andtimely paid, collected or remitted all Taxes (whether or not shown on any TaxReturn) due and payable, collectible or remittable by it and all assessmentsreceived by it, except Taxes (i) that are being contested in good faith byappropriate proceedings and for which such Company has set aside on its booksadequate reserves in accordance with GAAP and (ii) which could not,individually or in the aggregate, have a Material Adverse Effect.  Each such Company has made adequate provisionin accordance with GAAP for all Taxes not yet due and payable.  Each such Company is unaware of any proposedor pending tax assessments, deficiencies or audits that could be reasonablyexpected to, individually or in the aggregate, result in a Material AdverseEffect.  No such Company has ever been aparty to any understanding or arrangement constituting a “tax shelter” withinthe meaning of Section 6111(c), Section 6111(d) or Section 6662(d)(2)(C)(iii)of the Code, or has ever “participated” in a “reportable transaction” withinthe meaning of Treasury Regulation Section 1.6011-4, except as could not bereasonably expected to, individually or in the aggregate, result in a MaterialAdverse Effect.

**SECTION 3.14     No Material Misstatements**.  No information, report, financial statement,certificate, Borrowing Request, LC Request, exhibit or schedule furnished by oron behalf of any such Company to the Administrative Agent or any Lender inconnection with the negotiation of any Loan Document or included therein ordelivered pursuant thereto, taken as a whole, or the Confidential InformationMemorandum contained or contains any material misstatement of fact or omittedor omits to state any material fact necessary to make the statements therein,in the light of the circumstances under which they were or are made, notmisleading as of the date such information is dated or certified; *provided* that to the extent any such information, report,financial statement, exhibit or schedule was based upon or constitutes aforecast or projection, each such Company represents only that it acted in goodfaith and utilized reasonable assumptions and due care in the preparation ofsuch information, report, financial statement, exhibit or schedule.

**SECTION 3.15     Labor Matters**.  As of the Closing Date, there are no strikes,lockouts or slowdowns against any such Company pending or, to the knowledge ofany such Company, threatened.  The hoursworked by and payments made to employees of any such Company have not been inviolation of the Fair Labor Standards Act of 1938, as amended, or any otherapplicable federal, state, local or foreign law dealing with such matters inany manner which could reasonably be expected to result in a Material AdverseEffect.  All payments due from anyCompany, or for which any claim may be made against any Company, on account ofwages and employee health and welfare insurance and other 

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benefits, have been paid or accrued as a liability onthe books of such Company except where the failure to do so could not reasonablybe expected to result in a Material Adverse Effect.  The consummation of the Transactions will notgive rise to any right of termination or right of renegotiation on the part ofany union under any collective bargaining agreement to which any such Companyis bound.

**SECTION 3.16     Solvency**.  Immediately after the consummation of theTransactions to occur on the Closing Date and immediately following the makingof each Loan and after giving effect to the application of the proceeds of eachLoan, (a) the fair value of the properties of each such Loan Party(individually and on a consolidated basis with its Subsidiaries) will exceedits debts and liabilities, subordinated, contingent or otherwise; (b) thepresent fair saleable value of the property of each such Loan Party(individually and on a consolidated basis with its Subsidiaries) will begreater than the amount that will be required to pay the probable liability ofits debts and other liabilities, subordinated, contingent or otherwise, as suchdebts and other liabilities become absolute and matured; (c) each suchLoan Party (individually and on a consolidated basis with its Subsidiaries)will be able to pay its debts and liabilities, subordinated, contingent or otherwise,as such debts and liabilities become absolute and matured; and (d) eachsuch Loan Party (individually and on a consolidated basis with itsSubsidiaries) will not have unreasonably small capital with which to conductits business in which it is engaged as such business is now conducted and isproposed to be conducted following the Closing Date.

**SECTION 3.17     Employee Benefit Plans**.  Each such Company that is subject to ERISAand the Code and its ERISA Affiliates are in compliance in all material respectswith the applicable provisions of ERISA and the Code and the regulations andpublished interpretations thereunder.  NoERISA Event has occurred or is reasonably expected to occur that, when takentogether with all other such ERISA Events, could reasonably be expected toresult in a Material Adverse Effect or the imposition of a Lien on any of theproperty of any such Company.  Thepresent value of all accumulated benefit obligations of all underfunded Plans(based on the assumptions used for purposes of Statement of FinancialAccounting Standards No. 87) did not, as of the date of the most recentfinancial statements reflecting such amounts, exceed by more than $250,000 thefair market value of the property of all such underfunded Plans.  Using actuarial assumptions and computationmethods consistent with subpart I of subtitle E of Title IV of ERISA, theaggregate liabilities of each such Company or its ERISA Affiliates to allMultiemployer Plans in the event of a complete withdrawal therefrom, as of the closeof the most recent fiscal year of each such Multiemployer Plan, could notreasonably be expected to result in a Material Adverse Effect.

To the extent applicable, each Foreign Plan has beenmaintained in substantial compliance with its terms and with the requirementsof any and all applicable Requirements of Law and has been maintained, whererequired, in good standing with applicable regulatory authorities.  No such Company has incurred any materialobligation in connection with the termination of or withdrawal from any ForeignPlan.  The present value of the accruedbenefit liabilities (whether or not vested) under each Foreign Plan which isfunded, determined as of the end of the most recently ended fiscal year of therespective Company on the basis of actuarial assumptions, each of which isreasonable, did not exceed the current value of the property of such ForeignPlan, and for each Foreign Plan which is not funded, the obligations of suchForeign Plan are properly accrued.

**SECTION3.18     Environmental Matters**.

### (a)           Exceptas set forth in Schedule 3.18 and except as, individually or in theaggregate, could not reasonably be expected to result in a loss to thebusiness, property, operations or prospects of any Loan Party in excess of$500,000:

#### (i)      Such Companies and their businesses,operations and Real Property are in compliance with, and such Companies have noliability under, any applicable Environmental Law; and under the currentlyeffective 

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#### business planof such Companies, no expenditures or operational adjustments will be requiredin order to comply with applicable Environmental Laws during the term of thisAgreement;

#### (ii)     Such Companies have obtained allEnvironmental Permits required for the conduct of their businesses andoperations, and the ownership, operation and use of their property, underEnvironmental Law, all such Environmental Permits are valid and in goodstanding and, under the currently effective business plan of such Companies, noexpenditures or operational adjustments will be required in order to renew ormodify such Environmental Permits during the term of this Agreement;

#### (iii)    There has been no Release or threatenedRelease of Hazardous Material on, at, under or from any Real Property orfacility presently or formerly owned, leased or operated by such Companies ortheir predecessors in interest that could result in liability by such Companiesunder any applicable Environmental Law;

#### (iv)    There is no Environmental Claim pending or,to the knowledge of the Companies, threatened against such Companies, orrelating to the Real Property currently or formerly owned, leased or operatedby such Companies or their predecessors in interest or relating to the operationsof such Companies, and there are no actions, activities, circumstances, conditions,events or incidents that could form the basis of such an Environmental Claim;and

#### (v)     No person with an indemnity or contributionobligation to such Companies relating to compliance with or liability underEnvironmental Law is in default with respect to such obligation.

### (b)           Exceptas set forth in Schedule 3.18:

#### (i)      No such Company is obligated to performany action or otherwise incur any expense under Environmental Law pursuant toany order, decree, judgment or agreement by which it is bound or has assumed bycontract, agreement or operation of law, and no Company is conducting or financingany Response pursuant to any Environmental Law with respect to any RealProperty or any other location;

#### (ii)     No Real Property or facility owned,operated or leased by such Companies and, to the knowledge of such Companies,no Real Property or facility formerly owned, operated or leased by suchCompanies or any of their predecessors in interest is (i) listed orproposed for listing on the National Priorities List promulgated pursuant toCERCLA or (ii) listed on the Comprehensive Environmental Response,Compensation and Liability Information System promulgated pursuant to CERCLA or(iii) included on any similar list maintained by any GovernmentalAuthority including any such list relating to petroleum;

#### (iii)    No Lien has been recorded or, to theknowledge of any Company, threatened under any Environmental Law with respectto any Real Property or other assets of such Companies;

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#### (iv)    The execution, delivery and performance ofthis Agreement and the consummation of the transactions contemplated herebywill not require any notification, registration, filing, reporting, disclosure,investigation, remediation or cleanup pursuant to any Governmental RealProperty Disclosure Requirements or any other applicable Environmental Law; and

#### (v)     Such Companies have made available to theLenders all material records and files in the possession, custody or controlof, or otherwise reasonably available to, such Companies concerning compliancewith or liability under Environmental Law, including those concerning theactual or suspected existence of Hazardous Material at Real Property orfacilities currently or formerly owned, operated, leased or used by such Companies.

**SECTION 3.19     Insurance**.  Schedule 3.19 sets forth a true,complete and correct description of all insurance maintained by each suchCompany as of the Closing Date.  Allinsurance maintained by such Companies is in full force and effect, allpremiums have been duly paid, no such Company has received notice of violationor cancellation thereof, the Premises, and the use, occupancy and operationthereof, comply in all material respects with all Insurance Requirements, andthere exists no default under any Insurance Requirement.  Each such Company has insurance in suchamounts and covering such risks and liabilities as are customary for companiesof a similar size engaged in similar businesses in similar locations.

**SECTION3.20     Security Documents**.

### (a)           SecurityAgreement.  The Security Agreement iseffective to create in favor of the Collateral Agent for the benefit of theSecured Parties, legal, valid and enforceable Liens on, and security interestsin, the Security Agreement Collateral pledged by such Company and, when(i) financing statements and other filings in appropriate form are filedin the offices specified on Schedule 7 to the PerfectionCertificate and (ii) upon the taking of possession or control by theCollateral Agent of the Security Agreement Collateral with respect to which asecurity interest may be perfected only by possession or control (whichpossession or control shall be given to the Collateral Agent to the extentpossession or control by the Collateral Agent is required by each SecurityAgreement), the Liens created by the Security Agreement shall constitute fullyperfected Liens on, and security interests in, all right, title and interest ofthe grantors in the Security Agreement Collateral pledged by such Company(other than such Security Agreement Collateral in which a security interestcannot be perfected under the UCC as in effect at the relevant time in therelevant jurisdiction), in each case subject to no Liens other than PermittedCollateral Liens.

### (b)           PTOFiling; Copyright Office Filing. When the Security Agreement or a short form thereof is filed in theUnited States Patent and Trademark Office and the United States CopyrightOffice, the Liens created by such Security Agreement shall constitute fullyperfected Liens on, and security interests in, all right, title and interest ofthe grantors thereunder in Patents (as defined in the Security Agreement)registered or applied for with the United States Patent and Trademark Officepledged by such Company or Copyrights (as defined in such Security Agreement)registered or applied for with the United States Copyright Office pledged bysuch Company, as the case may be, in each case subject to no Liens other thanPermitted Collateral Liens.

### (c)           Mortgages.  Each Mortgage to be executed and deliveredafter the date thereof in accordance with the provisions of Sections 5.11and 5.12 shall be effective to create, in favor of the Collateral Agent,for its benefit and the benefit of the Secured Parties, legal, valid andenforceable first 

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### priority Liens on, and security interests in, all of the applicableLoan Parties’ right, title and interest in and to the Mortgaged Propertiesthereunder and the proceeds thereof, subject only to Permitted Collateral Liensor other Liens acceptable to the Collateral Agent, and when such Mortgage isfiled in the offices specified in the local counsel opinion delivered withrespect thereto in accordance with the provisions of Sections 5.11and 5.12, such Mortgage shall constitute fully perfected Liens on, andsecurity interests in, all right, title and interest of the Loan Parties in theMortgaged Properties and the proceeds thereof, in each case prior and superiorin right to any other person, other than Liens permitted by such Mortgage.

### (d)           CaymanShare Charge.  The Cayman ShareCharge is effective to create in favor of the Collateral Agent for the benefitof the Secured Parties, a legal, valid and enforceable first fixed charge andequitable mortgage over, the Cayman Charged Property.

### (e)           CaymanDeed of Charge.  The Cayman Deed ofCharge is effective to create in favor of the Collateral Agent for the benefitof the Secured Parties, a legal, valid and enforceable first floating chargeover the Collateral described therein.

### (f)            CaymanSecurity Agreement.  The CaymanSecurity Agreement is effective to create in favor of the Collateral Agent forthe benefit of the Secured Parties, legal, valid and enforceable Liens on, andsecurity interests in, the Collateral pledged by the Cayman Borrowerthereunder, and when all appropriate filings or recordings are made in theappropriate offices as may be required under applicable law, the CaymanSecurity Document will constitute fully perfected Liens on, and securityinterests in, all right, title and interest of the Cayman Borrower in suchCollateral, in each case subject to no Liens other than the applicablePermitted Collateral Liens.

### (g)           ValidLiens.  Each Security Documentdelivered pursuant to Sections 5.11 and 5.12 will, upon executionand delivery thereof, be effective to create in favor of the Collateral Agent,for the benefit of the Secured Parties, legal, valid and enforceable Liens on,and security interests in, all of the applicable Loan Parties’ right, title andinterest in and to the Collateral thereunder, and (i) when all appropriatefilings or recordings are made in the appropriate offices as may be requiredunder applicable law and (ii) upon the taking of possession or control bythe Collateral Agent of such Collateral with respect to which a securityinterest may be perfected only by possession or control (which possession or controlshall be given to the Collateral Agent to the extent required by any SecurityDocument), such Security Document will constitute fully perfected Liens on, andsecurity interests in, all right, title and interest of the applicable LoanParties in such Collateral, in each case subject to no Liens other than theapplicable Permitted Collateral Liens.

**SECTION 3.21     Anti-Terrorism Law**.  (a)  Nosuch Loan Party and, to the knowledge of such Loan Parties, none of its Affiliatesis in violation of any Requirement of Law relating to terrorism or moneylaundering (“**Anti-Terrorism Laws**”), includingExecutive Order No. 13224 on Terrorist Financing, effective September 24,2001 (the “**Executive Order**”), and the Unitingand Strengthening America by Providing Appropriate Tools Required to Interceptand Obstruct Terrorism Act of 2001, Public Law 107-56.

### (b)           Nosuch Loan Party and to the knowledge of such Loan Parties, no Affiliate orbroker or other agent of any such Loan Party acting or benefiting in anycapacity in connection with the Loans is any of the following:

#### (i)      a person that is listed in the annex to,or is otherwise subject to the provisions of, the Executive Order;

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#### (ii)     a person owned or controlled by, or actingfor or on behalf of, any person that is listed in the annex to, or is otherwisesubject to the provisions of, the Executive Order;

#### (iii)    a person with which any Lender is prohibitedfrom dealing or otherwise engaging in any transaction by any Anti-TerrorismLaw;

#### (iv)    a person that commits, threatens orconspires to commit or supports “terrorism” as defined in the Executive Order;or

#### (v)     a person that is named as a “speciallydesignated national and blocked person” on the most current list published bythe U.S. Treasury Department Office of Foreign Assets Control (“**OFAC**”) at its official website or anyreplacement website or other replacement official publication of such list.

### (c)           Nosuch Loan Party and, to the knowledge of such Loan Parties, no broker or otheragent of any such Loan Party acting in any capacity in connection with theLoans (i) conducts any business or engages in making or receiving anycontribution of funds, goods or services to or for the benefit of any persondescribed in paragraph (b) above, (ii) deals in, or otherwise engagesin any transaction relating to, any property or interests in property blockedpursuant to the Executive Order, or (iii) engages in or conspires toengage in any transaction that evades or avoids, or has the purpose of evadingor avoiding, or attempts to violate, any of the prohibitions set forth in anyAnti-Terrorism Law.

## **SECTION 3.22              ConvertibleBond Documents.**

### (a)           Theexecution and delivery of the Loan Documents by any such Loan Party and theincurrence of Indebtedness by any such Loan Party pursuant to the LoanDocuments, including any future advances hereunder, will not violate or resultin a default under any of the Convertible Bond Documents.

### (b)           TheObligations constitute “Senior Indebtedness” and “Designated Senior Indebtedness”(as each such term is defined in the Convertible Bond Indenture) under theterms of the Convertible Bond Documents entitled to the benefits of thesubordination provisions set forth in Article XI of the Convertible Bond Indenture.

### (c)           TheAgents and Lenders are intended third party beneficiaries of the provisions setforth in Article XI of the Convertible Bond Indenture, with the right andability to enforce such provisions for their own benefit.  Each such Borrower acknowledges and agreesthat the Agents and the Lenders are entering into this Agreement and areextending Commitments in reliance upon the subordination provisions of ArticleXI of the Convertible Bond Indenture and this Section 3.22.

## **SECTION 3.23              ForeignSubsidiaries**.

As of the Closing Date, no Foreign Subsidiary of theUS Borrower (other than the Cayman Borrower) holds any Intellectual Property,and no Foreign Subsidiary of the US Borrower (other than the Cayman Borrowerand Irish Sciele) holds any material properties, is liable for any material obligations(whether contingent or actual), engages in any trade or business, or conductsany business activity, other than (1) the issuance of its Equity Intereststo the US Borrower or any Wholly Owned Subsidiary of the US Borrower or(2) the licensing of Intellectual Property from one or more Companies andactivities incidental thereto.

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# **ARTICLEIV**

# **CONDITIONSTO CREDIT EXTENSIONS**

**SECTION 4.01     Conditions to Initial CreditExtension**.  The obligationof each Lender and, if applicable, each Issuing Bank to fund the initial CreditExtension requested to be made by it shall be subject to the prior orconcurrent satisfaction (except to the extent that such conditions arepermitted to be satisfied on a post-closing basis pursuant to Section 5.15herein) of each of the conditions precedent set forth in this Section 4.01.

### (a)           LoanDocuments.  All legal mattersincident to this Agreement, the Credit Extensions hereunder and the other LoanDocuments shall be reasonably satisfactory to the Lenders, to the Issuing Bankand to the Administrative Agent and there shall have been delivered to theAdministrative Agent an executed counterpart of each of the Loan Documents andthe Perfection Certificate.

### (b)           CorporateDocuments.  The Administrative Agentshall have received:

#### (i)      a certificate of the secretary orassistant secretary of each Loan Party dated the Closing Date, certifying(A) that attached thereto is a true and complete copy of each OrganizationalDocument of such Loan Party certified (to the extent applicable) as of a recentdate by the Secretary of State of the state of its organization, (B) thatattached thereto is a true and complete copy of resolutions duly adopted by theBoard of Directors of such Loan Party authorizing the execution, delivery and performanceof the Loan Documents to which such person is a party and, in the case of theBorrowers, the borrowings hereunder, and that such resolutions have not beenmodified, rescinded or amended and are in full force and effect and (C) asto the incumbency and specimen signature of each officer executing any LoanDocument or any other document delivered in connection herewith on behalf ofsuch Loan Party (together with a certificate of another officer as to theincumbency and specimen signature of the secretary or assistant secretary executingthe certificate in this clause (i));

#### (ii)     a certificate as to the good standing ofeach Loan Party (in so-called “long-form” if available) (or foreign equivalent)as of a recent date, from such Secretary of State (or other applicableGovernmental Authority); and

#### (iii)    such other documents as the Lenders, theIssuing Bank or the Administrative Agent may reasonably request.

### (c)           Officers’Certificate.  The AdministrativeAgent shall have received a certificate, dated the Closing Date and signed bythe chief executive officer, the chief financial officer or an equivalentsenior officer of each Borrower, confirming compliance with the conditionsprecedent set forth in this Section 4.01 and Sections 4.02(b),(c) and (d).

### (d)           Financingsand Other Transactions, etc.

#### (i)      The Transactions shall have beenconsummated or shall be consummated simultaneously on the Closing Date, in eachcase in all material respects in accordance with the terms hereof and the termsof the Loan Documents, without the waiver or amendment of any such

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#### terms notapproved by the Administrative Agent and the Arrangers other than any waiver oramendment thereof that is not materially adverse to the interests of theLenders.

#### (ii)     The Lenders shall be reasonably satisfiedwith the management, capitalization, the terms and conditions of any equityarrangements and the corporate or other organizational structure of theCompanies (after giving effect to the Transactions) and any indemnities, employmentand other arrangements entered into in connection with the Transactions.

#### (iii)    The Refinancing shall have been consummatedin full to the reasonable satisfaction of the Lenders with all liens in favorof the existing lenders being unconditionally released; the AdministrativeAgent shall have received a “pay-off” letter in form and substance reasonablysatisfactory to the Administrative Agent with respect to all debt beingrefinanced in the Refinancing; and the Administrative Agent shall have receivedfrom any person holding any Lien securing any such debt, such UCC terminationstatements, mortgage releases, releases of assignments of leases and rents,releases of security interests in Intellectual Property and other instruments,in each case in proper form for recording, as the Administrative Agent shallhave reasonably requested to release and terminate of record the Liens securingsuch debt.

### (e)           FinancialStatements; Pro Forma Balance Sheet; Projections.  The Lenders shall have received and shall besatisfied with the form and substance of the financial statements described in Section 3.04and with the forecasts of the financial performance of the US Borrower and itsSubsidiaries.

### (f)            Indebtednessand Minority Interests.  After givingeffect to the Transactions and the other transactions contemplated hereby, noCompany shall have outstanding any Indebtedness or preferred stock other than(i) the Loans and Credit Extensions hereunder, (ii) the Indebtednesslisted on Schedule 6.01(b) and (iii) Indebtedness owed to anyBorrower or any Guarantor.

### (g)           Opinionsof Counsel.  The Administrative Agentshall have received, on behalf of itself, the other Agents, the Arrangers, theLenders and the Issuing Bank, a favorable written opinion of (i) Paul,Hastings, Janofsky & Walker, LLP, special counsel for the Loan Parties, and(ii) each local and foreign counsel listed on Schedule 4.01(g),in each case (A) dated the Closing Date, (B) addressed to the Agents,the Issuing Bank and the Lenders and (C) covering the matters set forth inExhibit N and such other matters relating to the Loan Documents and theTransactions as the Administrative Agent shall reasonably request.

### (h)           SolvencyCertificate.  The AdministrativeAgent shall have received a solvency certificate in the form of Exhibit O,dated the Closing Date and signed by the chief financial officer of each Borrower.

### (i)            Requirementsof Law.  The Lenders shall besatisfied that each Borrower, its Subsidiaries and the Transactions shall be infull compliance with all material Requirements of Law, including Regulations T,U and X of the Board, and shall have received satisfactory evidence of such compliancereasonably requested by them.

### (j)            Consents.  The Lenders shall be satisfied that allrequisite Governmental Authorities and third parties shall have approved orconsented to the Transactions, and there shall be no governmental or judicialaction, actual or threatened, that has or would have, singly or in theaggregate, a reasonable likelihood of restraining, preventing or imposing burdensomeconditions on the Transactions or the other transactions contemplated hereby.

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### (k)           Litigation.  There shall be no litigation, public orprivate, or administrative proceedings, governmental investigation or otherlegal or regulatory developments, actual or threatened, that, singly or in theaggregate, could reasonably be expected to result in a Material Adverse Effect,or could materially and adversely affect the ability of the Borrowers and theSubsidiaries to fully and timely perform their respective obligations under theLoan Documents, or the ability of the parties to consummate the financingscontemplated hereby or the other Transactions.

### (l)            Sourcesand Uses.  The sources and uses ofthe Loans shall be as set forth in Section 3.12.

### (m)          Fees.  The Arrangers and Administrative Agent shallhave received all Fees and other amounts due and payable on or prior to theClosing Date, including, to the extent invoiced, reimbursement or payment ofall out-of-pocket expenses (including the legal fees and expenses of Latham& Watkins LLP, specialcounsel to the Agents, and the fees and expenses of any local counsel, foreigncounsel, appraisers, consultants and other advisors) required to be reimbursedor paid by the Borrowers hereunder or under any other Loan Document.

### (n)           PersonalProperty Requirements.  TheCollateral Agent shall have received:

(i)      UCC financing statements (or their foreignequivalents) in appropriate form for filing under the UCC (or its foreignequivalent), filings with the United States Patent and Trademark Office andUnited States Copyright Office and such other documents under applicable Requirementsof Law in each jurisdiction as may be necessary or appropriate or, in theopinion of the Collateral Agent, desirable to perfect the Liens created, orpurported to be created, by the Security Documents;

(ii)     certified copies of UCC (or their foreignequivalents), United States Patent and Trademark Office and United StatesCopyright Office, tax and judgment lien searches, bankruptcy and pending lawsuitsearches or equivalent reports or searches, each of a recent date listing alleffective financing statements, lien notices or comparable documents that nameany Loan Party as debtor and that are filed in those state and, if applicable,county jurisdictions in which any property of any Loan Party is located and thestate and, if applicable, county jurisdictions in which any Loan Party isorganized or maintains its principal place of business and such other searchesthat the Collateral Agent deems necessary or appropriate, none of whichencumber the Collateral covered or intended to be covered by the SecurityDocuments (other than Permitted Collateral Liens or any other Liens acceptableto the Collateral Agent);

(iii)    with respect to each location set forth on Schedule 4.01(n)(iii),a Landlord Access Agreement or Bailee Letter, as applicable; *provided* that no such Landlord Access Agreement or BaileeLetter shall be required (A) with respect to any Real Property that could notbe obtained after the Loan Party that is the lessee of such Real Property orowner of the inventory or other personal property Collateral stored with thebailee thereof, as applicable, shall have used all commercially reasonableefforts to do so, or (B) with respect to any location where the book value ofpersonal property Collateral stored with the bailee thereof is less than $5.0million per location so long as the aggregate book value of personal propertyCollateral at all such locations for which no Bailee Letter is obtained does notexceed $10.0 million; and

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(iv)    evidence acceptable to the Collateral Agentof payment or arrangements for payment by the Loan Parties of all applicablerecording taxes, fees, charges, costs and expenses required for the recordingof the Security Documents.

### (o)           Insurance.  The Administrative Agent shall have receiveda copy of, or a certificate as to coverage under, the insurance policiesrequired by Section 5.04 and the applicable provisions of theSecurity Documents, each of which shall be endorsed or otherwise amended to includea “standard” or “New York” lender’s loss payable or mortgagee endorsement (asapplicable) and shall name the Collateral Agent, on behalf of the SecuredParties, as additional insured, in form and substance satisfactory to the AdministrativeAgent.

### (p)           USAPatriot Act.  The Lenders shall havereceived, sufficiently in advance of the Closing Date, all documentation andother information that may be required by the Lenders in order to enablecompliance with applicable “know your customer” and anti-money laundering rulesand regulations, including the United States PATRIOT Act (Title III of Pub. L.107-56 (signed into law October 26, 2001)) including the information describedin Section 10.13.

**SECTION 4.02     Conditions to All Credit Extensions**.  The obligation of each Lender and eachIssuing Bank to make any Credit Extension (including the initial CreditExtension) shall be subject to, and to the satisfaction of, each of the conditionsprecedent set forth below.

### (a)           Notice.  The Administrative Agent shall have receiveda Borrowing Request as required by Section 2.03 (or such noticeshall have been deemed given in accordance with Section 2.03) ifLoans are being requested or, in the case of the issuance, amendment, extensionor renewal of a Letter of Credit, the Issuing Bank and the Administrative Agentshall have received an LC Request as required by Section 2.18(b)or, in the case of the Borrowing of a Swingline Loan, the Swingline Lender andthe Administrative Agent shall have received a Borrowing Request as required bySection 2.17(b).

### (b)           NoDefault.  The Borrowers and eachother Loan Party shall be in compliance in all material respects with all theterms and provisions set forth herein and in each other Loan Document on itspart to be observed or performed, and, at the time of and immediately aftergiving effect to such Credit Extension and the application of the proceedsthereof, no Default shall have occurred and be continuing on such date.

### (c)           Representationsand Warranties.  Each of therepresentations and warranties made by any Loan Party set forth in Article IIIhereof or in any other Loan Document shall be true and correct in all materialrespects (except that any representation and warranty that is qualified as to “materiality”or “Material Adverse Effect” shall be true and correct in all respects) on andas of the date of such Credit Extension with the same effect as though made onand as of such date, except to the extent such representations and warrantiesexpressly relate to an earlier date.

### (d)           NoLegal Bar.  No order, judgment ordecree of any Governmental Authority shall purport to restrain any Lender frommaking any Loans to be made by it.  Noinjunction or other restraining order shall have been issued, shall be pendingor noticed with respect to any action, suit or proceeding seeking to enjoin orotherwise prevent the consummation of, or to recover any damages or obtainrelief as a result of, the transactions contemplated by this Agreement or themaking of Loans hereunder.

 

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### (e)           CreditExtensions to the US Borrower.  Ifsuch Credit Extension will be a Borrowing by the US Borrower or a US Letter ofCredit issuance, the Cayman Borrower shall have repaid in full all intercompanyloans and advances made to it by the US Borrower (other than ExistingIntercompany Loans).

Each of the delivery of aBorrowing Request or an LC Request and the acceptance by a Borrower of theproceeds of such Credit Extension shall constitute a representation andwarranty by the relevant Borrower and each other Loan Party that on the date ofsuch Credit Extension (both immediately before and after giving effect to suchCredit Extension and the application of the proceeds thereof) the conditionscontained in Sections 4.02(b)-(d) have been satisfied.  Each Borrower shall provide such information(including calculations in reasonable detail of the covenants in Section 6.10)as the Administrative Agent may reasonably request to confirm that theconditions in Sections 4.02(b)-(d) have been satisfied.

# **ARTICLE V**

# **AFFIRMATIVECOVENANTS**

Each Loan Party warrants, covenants and agrees witheach Lender that so long as this Agreement shall remain in effect and until theCommitments have been terminated and the principal of and interest on eachLoan, all Fees and all other expenses or amounts payable under any LoanDocument shall have been paid in full and all Letters of Credit have beencanceled or have expired and all amounts drawn thereunder have been reimbursedin full, unless the Required Lenders shall otherwise consent in writing, eachLoan Party will, and will cause each of its Subsidiaries to:

**SECTION 5.01     Financial Statements, Reports,etc.**  Furnish to theAdministrative Agent and each Lender:

### (a)           AnnualReports.  As soon as available and inany event within 90 days (or such earlier date on which the US Borrower isrequired to file a Form 10-K under the Exchange Act) after the end of eachfiscal year, beginning with the fiscal year ending December 31, 2006,(i) the consolidated balance sheet of the US Borrower as of the end ofsuch fiscal year and related consolidated statements of income, cash flows andstockholders’ equity for such fiscal year, in comparative form with such financialstatements as of the end of, and for, the preceding fiscal year, and notesthereto all prepared in accordance with Regulation S-X and accompanied by anopinion of independent public accountants of recognized national standing orotherwise satisfactory to the Administrative Agent (which opinion shall not bequalified as to scope or contain any going concern or other qualification),stating that such financial statements fairly present, in all materialrespects, the consolidated financial condition, results of operations and cashflows of the US Borrower as of the dates and for the periods specified inaccordance with GAAP, (ii) a management report in a form reasonablysatisfactory to the Administrative Agent setting forth (A) statement of incomeitems and Consolidated EBITDA of the US Borrower for such fiscal year, showingvariance, by dollar amount and percentage, from amounts for the previous fiscalyear and budgeted amounts and (B) key operational information and statisticsfor such fiscal year consistent with internal and industry-wide reporting standards,and (iii) a narrative report and management’s discussion and analysis, ina form reasonably satisfactory to the Administrative Agent, of the financialcondition and results of operations of the US Borrower for such fiscal year, ascompared to amounts for the previous fiscal year and budgeted amounts (it beingunderstood that the information required by clause (i) and clause (iii) may befurnished in the form of a Form 10-K);

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### (b)           QuarterlyReports.  As soon as available and inany event within 45 days (or such earlier date on which the US Borrower isrequired to file a Form 10-Q under the Exchange Act) after the end of each ofthe first three fiscal quarters of each fiscal year, beginning with the fiscalquarter ending September 30, 2006, the consolidated balance sheet of the USBorrower as of the end of such fiscal quarter and related consolidatedstatements of income and cash flows for such fiscal quarter and for thenelapsed portion of the fiscal year, in comparative form with the consolidatedstatements of income and cash flows for the comparable periods in the previousfiscal year, and notes thereto, all prepared in accordance with Regulation S-Xunder the Securities Act and accompanied by a certificate of a Financial Officerstating that such financial statements fairly present, in all materialrespects, the consolidated financial condition, results of operations and cashflows of the US Borrower as of the date and for the periods specified inaccordance with GAAP consistently applied, and on a basis consistent withaudited financial statements referred to in clause (a) of this Section,subject to normal year-end audit adjustments (it being understood that theinformation required by this paragraph (b) may be furnished in the form of aForm 10-Q);

### (c)           [IntentionallyDeleted].

### (d)           FinancialOfficer’s Certificate.  (i) Concurrently with any delivery of financial statements under Section 5.01(a)or (b), a Compliance Certificate (A) certifying that no Default has occurredor, if such a Default has occurred, specifying the nature and extent thereofand any corrective action taken or proposed to be taken with respect thereto,(B) beginning with the fiscal quarter ending September 30, 2006, setting forthcomputations in reasonable detail satisfactory to the Administrative Agentdemonstrating compliance with the covenants contained in Sections 6.07(f)and 6.10 and (C) showing a reconciliation of Consolidated EBITDA to thenet income set forth on the statement of income; and (ii) concurrentlywith any delivery of financial statements under Section 5.01(a)above, beginning with the fiscal quarter ending June 30, 2006, a report of theaccounting firm opining on or certifying such financial statements stating thatin the course of its regular audit of the financial statements of the USBorrower and its Subsidiaries, which audit was conducted in accordance withgenerally accepted auditing standards, such accounting firm obtained noknowledge that any Default insofar as it relates to financial or accountingmatters has occurred or, if in the opinion of such accounting firm such aDefault has occurred, specifying the nature and extent thereof;

### (e)           FinancialOfficer’s Certificate Regarding Collateral. Concurrently with any delivery of financial statements under Section 5.01(a),a certificate of a Financial Officer setting forth the information required pursuantto the Perfection Certificate Supplement or confirming that there has been nochange in such information since the date of the Perfection Certificate orlatest Perfection Certificate Supplement;

### (f)            PublicReports.  Promptly after the samebecome publicly available, copies of all periodic and other reports, proxystatements and other materials filed by any Company with the Securities andExchange Commission, or any Governmental Authority succeeding to any or all ofthe functions of said Commission, or with any national securities exchange, ordistributed to holders of its Indebtedness pursuant to the terms of thedocumentation governing such Indebtedness (or any trustee, agent or other representativetherefor), as the case may be;

### (g)           ManagementLetters.  Promptly after the receiptthereof by any Company, a copy of any “management letter” received by any suchperson from its certified public accountants and the management’s responsesthereto;

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### (h)           Budgets.  Within 30 days after the beginning ofeach fiscal year, a budget for the US Borrower and its Subsidiaries in form reasonablysatisfactory to the Administrative Agent, but to include balance sheets,statements of income and sources and uses of cash, for (i) each month ofsuch fiscal year prepared in detail and (ii) each fiscal year thereafter,through and including the fiscal year in which the Final Maturity Date occurs,prepared in summary form, in each case, with appropriate presentation anddiscussion of the principal assumptions upon which such budgets are based,accompanied by the statement of a Financial Officer of the US Borrower to theeffect that the budget of the US Borrower is a reasonable estimate for theperiods covered thereby and, promptly when available, any significant revisionsof such budget;

### (i)            Organization.  Concurrently with any delivery of financialstatements under Section 5.01(a), an accurate organizational chartas required by Section 3.07(c), or confirmation that there are no changesto Schedule 10(a) to the Perfection Certificate;

### (j)            OrganizationalDocuments.  Promptly provide copiesof any Organizational Documents that have been amended or modified inaccordance with the terms hereof and deliver a copy of any notice of defaultgiven or received by any Company under any Organizational Document within 15days after such Company gives or receives such notice; and

### (k)           OtherInformation.  Promptly, from time totime, such other information regarding the operations, business affairs andfinancial condition of any Company, or compliance with the terms of any LoanDocument, as the Administrative Agent or any Lender may reasonably request.

**SECTION 5.02     Litigation and Other Notices**.  Furnish to the Administrative Agent and eachLender written notice of the following promptly (and, in any event, withinthree Business Days of the occurrence thereof and, in the case of clause (f)below, prior to such amendment, waiver or modification becoming effective):

### (a)           anyDefault, specifying the nature and extent thereof and the corrective action (ifany) taken or proposed to be taken with respect thereto;

### (b)           thefiling or commencement of, or any threat or notice of intention of any personto file or commence, any action, suit, litigation or proceeding, whether at lawor in equity by or before any Governmental Authority, (i) against anyCompany or any Affiliate thereof that could reasonably be expected to result ina Material Adverse Effect or (ii) with respect to any Loan Document;

### (c)           anydevelopment that has resulted in, or could reasonably be expected to result ina Material Adverse Effect;

### (d)           theoccurrence of a Casualty Event involving a loss of greater than $500,000;

### (e)           (i) theincurrence of any material Lien (other than Permitted Collateral Liens) on, orclaim asserted against any of the Collateral or (ii) the occurrence of anyother event which could materially affect the value of the Collateral;

### (f)            anyproposed amendment, waiver or modification to the Convertible Bond Indenture,which notice shall attach a copy of such proposed amendment, waiver ormodification; and

### (g)           anydefault (which notice shall attach a copy of any notice of default received byany Company) under the Convertible Bond Indenture.

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**SECTION5.03     Existence; Businessesand Properties**.

### (a)           Door cause to be done all things necessary to preserve, renew and maintain infull force and effect its legal existence, except as otherwise expresslypermitted under Section 6.05 or Section 6.06 or, in thecase of any Subsidiary, where the failure to perform such obligations,individually or in the aggregate, could not reasonably be expected to result ina Material Adverse Effect.

### (b)           Door cause to be done all things necessary to obtain, preserve, renew, extend andkeep in full force and effect the rights, licenses, permits, privileges,franchises, authorizations, patents, copyrights, trademarks and trade namesmaterial to the conduct of its business; maintain and operate such business insubstantially the manner in which it is presently conducted and operated;comply with all applicable Requirements of Law (including any and all zoning,building, Environmental Law, ordinance, code or approval or any buildingpermits or any restrictions of record or agreements affecting the RealProperty) and decrees and orders of any Governmental Authority, whether now ineffect or hereafter enacted, except where the failure to comply, individuallyor in the aggregate, could not reasonably be expected to result in a MaterialAdverse Effect; pay and perform its obligations under all Leases; and at alltimes maintain, preserve and protect all property material to the conduct ofsuch business and keep such property in good repair, working order andcondition (other than wear and tear occurring in the ordinary course ofbusiness) and from time to time make, or cause to be made, all needful andproper repairs, renewals, additions, improvements and replacements theretonecessary in order that the business carried on in connection therewith may beproperly conducted at all times; *provided* thatnothing in this Section 5.03(b) shall prevent (i) sales ofproperty, consolidations or mergers by or involving any Company in accordancewith Section 6.05 or Section 6.06; (ii) thewithdrawal by any Company of its qualification as a foreign corporation in anyjurisdiction where such withdrawal, individually or in the aggregate, could notreasonably be expected to result in a Material Adverse Effect; or(iii) the abandonment by any Company of any rights, franchises, licenses,trademarks, trade names, copyrights or patents that such person reasonablydetermines are not useful to its business or no longer commercially desirable.

**SECTION5.04     Insurance**.

### (a)           Generally.  Keep its insurable property adequatelyinsured at all times by financially sound and reputable insurers; maintain suchother insurance, to such extent and against such risks as is customary withcompanies in the same or similar businesses operating in the same or similarlocations, including insurance with respect to Mortgaged Properties and otherproperties material to the business of the Companies against such casualtiesand contingencies and of such types and in such amounts with such deductiblesas is customary in the case of similar businesses operating in the same orsimilar locations, including (i) physical hazard insurance on an “all risk”basis, (ii) commercial general liability against claims for bodily injury,death or property damage covering any and all insurable claims,(iii) explosion insurance in respect of any boilers, machinery or similarapparatus constituting Collateral, (iv) business interruption insurance,(v) worker’s compensation insurance and such other insurance as may berequired by any Requirement of Law and (vi) such other insurance againstrisks as the Administrative Agent may from time to time require (such policiesto be in such form and amounts and having such coverage as may be reasonablysatisfactory to the Administrative Agent and the Collateral Agent); *provided* that with respect to physical hazard insurance,neither the Collateral Agent nor the applicable Company shall agree to the adjustmentof any claim thereunder without the consent of the other (such consent not tobe unreasonably withheld or delayed); *provided*,*further*, that no consent of any Company shall be requiredduring an Event of Default.

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### (b)           Requirementsof Insurance.  All such insuranceshall (i) provide that no cancellation, material reduction in amount ormaterial change in coverage thereof shall be effective until at least30 days after receipt by the Collateral Agent of written notice thereof,(ii) name the Collateral Agent on behalf of the Secured Parties asmortgagee (in the case of property insurance) or additional insured (in thecase of liability insurance) or loss payee (in the case of property insurance),as applicable, (iii) if reasonably requested by the Collateral Agent,include a breach of warranty clause and (iv) be reasonably satisfactory inall other respects to the Collateral Agent.

### (c)           Noticeto Agents.  Notify the AdministrativeAgent and the Collateral Agent immediately whenever any separate insuranceconcurrent in form or contributing in the event of loss with that required tobe maintained under this Section 5.04 is taken out by any Company;and promptly deliver to the Administrative Agent and the Collateral Agent aduplicate original copy of such policy or policies.

### (d)           FloodInsurance.  With respect to eachMortgaged Property, obtain flood insurance in such total amount as the AdministrativeAgent or the Required Lenders may from time to time require, if at any time thearea in which any improvements located on any Mortgaged Property is designateda “flood hazard area” in any Flood Insurance Rate Map published by the FederalEmergency Management Agency (or any successor agency), and otherwise complywith the National Flood Insurance Program as set forth in the Flood DisasterProtection Act of 1973, as amended from time to time.

### (e)           Broker’sReport.  Deliver to theAdministrative Agent and the Collateral Agent and the Lenders a report of areputable insurance broker with respect to such insurance and such supplementalreports with respect thereto as the Administrative Agent or the CollateralAgent may from time to time reasonably request.

### (f)            MortgagedProperties.  No Loan Party that is anowner of Mortgaged Property shall take any action that is reasonably likely tobe the basis for termination, revocation or denial of any insurance coveragerequired to be maintained under such Loan Party’s respective Mortgage or thatcould be the basis for a defense to any claim under any Insurance Policymaintained in respect of the Premises, and each Loan Party shall otherwisecomply in all material respects with all Insurance Requirements in respect ofthe Premises; *provided*,*however*,that each Loan Party may, at its own expense and after written notice to theAdministrative Agent, (i) contest the applicability or enforceability ofany such Insurance Requirements by appropriate legal proceedings, theprosecution of which does not constitute a basis for cancellation or revocationof any insurance coverage required under this Section 5.04 or(ii) cause the Insurance Policy containing any such Insurance Requirementto be replaced by a new policy complying with the provisions of this Section 5.04.

**SECTION5.05     Obligations and Taxes**.

### (a)           Paymentof Obligations.  Pay its Indebtednessand other obligations promptly and in accordance with their terms and pay anddischarge promptly when due all Taxes, assessments and governmental charges orlevies imposed upon it or upon its income or profits or in respect of itsproperty, before the same shall become delinquent or in default, as well as alllawful claims for labor, services, materials and supplies or otherwise that, ifunpaid, might give rise to a Lien other than a Permitted Lien upon suchproperties or any part thereof; *provided* thatsuch payment and discharge shall not be required with respect to any such Tax,assessment, charge, levy or claim so long as (x)(i) the validity or amountthereof shall be contested in good faith by appropriate proceedings timelyinstituted and diligently conducted and the applicable Company shall have setaside on its books adequate reserves or other appropriate provisions withrespect thereto in accordance with GAAP, (ii) such contest operates to 

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### suspend collection of the contested obligation, Tax, assessment orcharge and enforcement of a Lien other than a Permitted Lien and (iii) inthe case of Collateral, the applicable Company shall have otherwise compliedwith the Contested Collateral Lien Conditions and (y) the failure to pay couldnot reasonably be expected to result in a Material Adverse Effect.

### (b)           Filingof Returns.  Timely and correctlyfile all material Tax Returns required to be filed by it.  Withhold, collect and remit all Taxes that itis required to collect, withhold or remit.

### (c)           TaxShelter Reporting.  Neither Borrowerintends to treat the Loans as being a “reportable transaction” within themeaning of Treasury Regulation Section 1.6011-4.  In the event any Borrower determines to takeany action inconsistent with such intention, it will promptly notify the AdministrativeAgent thereof.

**SECTION 5.06     Employee Benefits**.  (a) Comply in all material respects with the applicable provisions of ERISAand the Code to the extent such Loan Party or any of its Subsidiaries issubject to ERISA and the Code and (b) furnish to the Administrative Agent(x) as soon as possible after, and in any event within 5 days after,any Responsible Officer of any Company or any ERISA Affiliates of any Companyknows or has reason to know that, any ERISA Event has occurred that, alone ortogether with any other ERISA Event could reasonably be expected to result inliability of the Companies or any of their ERISA Affiliates in an aggregateamount exceeding $500,000 or the imposition of a Lien, a statement of a FinancialOfficer of the US Borrower setting forth details as to such ERISA Event and theaction, if any, that the Companies propose to take with respect thereto, and(y) upon request by the Administrative Agent, copies of (i) eachSchedule B (Actuarial Information) to the annual report (Form 5500 Series)filed by any Company or any ERISA Affiliate with the Internal Revenue Servicewith respect to each Plan; (ii) the most recent actuarial valuation reportfor each Plan; (iii) all notices received by any Company or any ERISAAffiliate from a Multiemployer Plan sponsor or any governmental agency concerningan ERISA Event; and (iv) such other documents or governmental reports orfilings relating to any Plan (or employee benefit plan sponsored or contributedto by any Company) as the Administrative Agent shall reasonably request.

**SECTION 5.07     Maintaining Records; Access toProperties and Inspections; Annual Meetings**.

### (a)           Keepproper books of record and account in which full, true and correct entries inconformity with GAAP and all Requirements of Law are made of all dealings andtransactions in relation to its business and activities.  Each Company will permit any representativesdesignated by the Administrative Agent or any Lender to visit and inspect thefinancial records and the property of such Company at reasonable times and asoften as reasonably requested and to make extracts from and copies of such financialrecords, and permit any representatives designated by the Administrative Agentor any Lender to discuss the affairs, finances, accounts and condition of anyCompany with the officers and employees thereof and advisors therefor(including independent accountants).

### (b)           Within150 days after the end of each fiscal year of the Companies, at therequest of the Administrative Agent or Required Lenders, hold a meeting (at amutually agreeable location, venue and time or, at the option of theAdministrative Agent, by conference call, the costs of such venue or call to bepaid by Borrowers) with all Lenders who choose to attend such meeting, at whichmeeting shall be reviewed the financial results of the previous fiscal year andthe financial condition of the Companies and the budgets presented for thecurrent fiscal year of the Companies.

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**SECTION 5.08     Use of Proceeds**.  Use the proceeds of the Loans only for thepurposes set forth in Section 3.12 and request the issuance ofLetters of Credit only for the purposes set forth in the definition ofCommercial Letter of Credit or Standby Letter of Credit, as the case may be.

**SECTION 5.09     Compliance with EnvironmentalLaws; Environmental Reports**.

### (a)           Comply,and cause all lessees and other persons occupying Real Property owned, operatedor leased by any Company to comply, in all material respects with allEnvironmental Laws and Environmental Permits applicable to its operations andReal Property; obtain and renew all material Environmental Permits applicableto its operations and Real Property; and conduct all Responses required by, andin accordance with, Environmental Laws; *provided* thatno Company shall be required to undertake any Response to the extent that itsobligation to do so is being contested in good faith and by proper proceedingsand appropriate reserves are being maintained with respect to such circumstancesin accordance with GAAP.

### (b)           Ifa Default caused by reason of a breach of Section 3.18 or Section 5.09(a)shall have occurred and be continuing for more than 20 days without theCompanies commencing activities reasonably likely to cure such Default inaccordance with Environmental Laws, at the written request of the AdministrativeAgent or the Required Lenders through the Administrative Agent, provide to theLenders within 45 days after such request, at the expense of theBorrowers, an environmental assessment report regarding the matters which arethe subject of such Default, including, where appropriate, soil and/orgroundwater sampling, prepared by an environmental consulting firm and, in theform and substance, reasonably acceptable to the Administrative Agent andindicating the presence or absence of Hazardous Materials and the estimatedcost of any compliance or Response to address them.

**SECTION 5.10     Accounts**. EachLoan Party shall, and shall cause each Subsidiary of each Loan Party to, enterinto, and cause each bank or other depository and each securities intermediaryor commodities intermediary to enter into, Control Agreements or similaragreements or foreign equivalent necessary to perfect the Collateral Agent’ssecurity interest in with respect to each deposit, securities, commodity orsimilar account maintained by such Person, *provided that*Foreign Loan Parties and their Foreign Subsidiaries may maintain bank accountsthat are not subject to such Control Agreements or similar agreements orforeign equivalent so long as theaverage daily balance on deposit in all such bank accounts during anycalendar month does not exceed $25.0 million.

**SECTION5.11     Additional Collateral;Additional Guarantors**.

### (a)           Subjectto this Section 5.11, with respect to any property acquired afterthe Closing Date by any Loan Party that is intended to be subject to the Liencreated by any of the Security Documents but is not so subject, promptly (andin any event within 30 days after the acquisition thereof)(i) execute and deliver to the Administrative Agent and the CollateralAgent such amendments or supplements to the relevant Security Documents or suchother documents as the Administrative Agent or the Collateral Agent shall deemnecessary or advisable to grant to the Collateral Agent, for its benefit andfor the benefit of the other Secured Parties, a Lien on such property subjectto no Liens other than Permitted Collateral Liens, and (ii) take allactions necessary to cause such Lien to be duly perfected to the extentrequired by such Security Document in accordance with all applicableRequirements of Law, including the filing of financing statements in suchjurisdictions as may be reasonably requested by the Administrative Agent.  The US Borrower shall otherwise take suchactions and execute and/or deliver to the Collateral Agent such documents asthe Administrative Agent or the Collateral Agent shall require to confirm thevalidity, perfection and priority of the Lien of the Security Documents on theproperties 

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### acquired after the Closing Date by a Domestic Loan Party, and theCayman Borrower shall otherwise take such actions and execute and/or deliver tothe Collateral Agent such documents as the Administrative Agent or theCollateral Agent shall require to confirm the validity, perfection and priorityof the Lien of the Security Documents on the properties acquired after theClosing Date by a Foreign Loan Party.

### (b)           Withrespect to any person that is or becomes a Subsidiary after the Closing Date,promptly (and in any event within 30 days after such person becomes aSubsidiary) (i) deliver to the Collateral Agent the certificates, if any,representing all of the Equity Interests of such Subsidiary, together withundated stock powers or other appropriate instruments of transfer executed anddelivered in blank by a duly authorized officer of the holder(s) of such EquityInterests, and all intercompany notes owing from such Subsidiary to any LoanParty together with instruments of transfer executed and delivered in blank bya duly authorized officer of such Loan Party and (ii) cause such newSubsidiary (A) to execute a Joinder Agreement or such comparabledocumentation to become a Guarantor and a joinder agreement to the applicableSecurity Agreement, substantially in the form annexed thereto or, in the caseof a Foreign Subsidiary, execute a security agreement compatible with the lawsof such Foreign Subsidiary’s jurisdiction in form and substance reasonablysatisfactory to the Administrative Agent, and (B) to take all actionsnecessary or advisable in the opinion of the Administrative Agent or theCollateral Agent to cause the Lien created by the applicable Security Agreementto be duly perfected to the extent required by such agreement in accordancewith all applicable Requirements of Law, including the filing of financingstatements in such jurisdictions as may be reasonably requested by theAdministrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required tobe delivered to the Collateral Agent pursuant to clause (i) of this Section 5.11(b)as a security for US Obligations shall not include any Equity Interests of aForeign Subsidiary created or acquired after the Closing Date and (2) noForeign Subsidiary shall be required to take the actions specified inclause (ii) of this Section 5.11(b) to the extent such actionsrelate to securing US Obligations, if, in the case of either clause (1) or(2), doing so would constitute an investment of earnings in United States propertyunder Section 956 (or a successor provision) of the Code, which investmentwould or could reasonably be expected to trigger a material increase in the netincome of a United States shareholder of such Subsidiary pursuant toSection 951 (or a successor provision) of the Code, as reasonablydetermined by the Administrative Agent; *provided* thatthis exception shall not apply to (A) Voting Stock of any Subsidiary whichis a first-tier controlled foreign corporation (as defined inSection 957(a) of the Code) representing 66% of the total voting power ofall outstanding Voting Stock of such Subsidiary and (B) 100% of the EquityInterests not constituting Voting Stock of any such Subsidiary, except that anysuch Equity Interests constituting “stock entitled to vote” within the meaningof Treasury Regulation Section 1.956-2(c)(2) shall be treated as VotingStock for purposes of this Section 5.11(b).

### (c)           Promptlygrant to the Collateral Agent, within 30 days of the acquisition thereof,a security interest in and Mortgage on each Real Property owned in fee by suchLoan Party as is acquired by such Loan Party after the Closing Date and that,together with any improvements thereon, individually has a fair market value ofat least $1.0 million, as additional security for the Secured Obligations(unless the subject property is already mortgaged to a third party to theextent permitted by Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonablysatisfactory in form and substance to the Administrative Agent and theCollateral Agent and shall constitute valid and enforceable perfected Lienssubject only to Permitted Collateral Liens or other Liens acceptable to the CollateralAgent.  The Mortgages or instrumentsrelated thereto shall be duly recorded or filed in such manner and in suchplaces as are required by law to establish, perfect, preserve and protect theLiens in favor of the Collateral Agent required to be granted pursuant to theMortgages and all taxes, fees and other charges payable in connection therewithshall be paid in full.  Such Loan Partyshall otherwise take such actions and execute and/or deliver to the CollateralAgent such documents as the Administrative Agent or the Collateral 

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### Agent shall require to confirm the validity, perfection and priority ofthe Lien of any existing Mortgage or new Mortgage against such after-acquiredReal Property (including a Title Policy, a Survey and local counsel opinion (inform and substance reasonably satisfactory to the Administrative Agent and theCollateral Agent) in respect of such Mortgage).

**SECTION 5.12     Security Interests; FurtherAssurances**.  Promptly,upon the reasonable request of the Administrative Agent, the Collateral Agentor any Lender, at the relevant Borrower’s expense, execute, acknowledge anddeliver, or cause the execution, acknowledgment and delivery of, and thereafterregister, file or record, or cause to be registered, filed or recorded, in an appropriategovernmental office, any document or instrument supplemental to or confirmatoryof the Security Documents or otherwise deemed by the Administrative Agent orthe Collateral Agent reasonably necessary or desirable for the continuedvalidity, perfection and priority of the Liens on the Collateral coveredthereby subject to no other Liens except as permitted by the applicableSecurity Document, or obtain any consents or waivers as may be necessary orappropriate in connection therewith. Deliver or cause to be delivered to the Administrative Agent and theCollateral Agent from time to time such other documentation, consents,authorizations, approvals and orders in form and substance reasonablysatisfactory to the Administrative Agent and the Collateral Agent as theAdministrative Agent and the Collateral Agent shall reasonably deem necessaryto perfect or maintain the Liens on the Collateral pursuant to the SecurityDocuments.  Upon the exercise by theAdministrative Agent, the Collateral Agent or any Lender of any power, right,privilege or remedy pursuant to any Loan Document which requires any consent,approval, registration, qualification or authorization of any GovernmentalAuthority execute and deliver all applications, certifications, instruments andother documents and papers that the Administrative Agent, the Collateral Agentor such Lender may require.  If theAdministrative Agent, the Collateral Agent or the Required Lenders determinethat they are required by a Requirement of Law to have appraisals prepared inrespect of the Real Property of any Loan Party constituting Collateral, therelevant Borrower shall provide to the Administrative Agent appraisals thatsatisfy the applicable requirements of the Real Estate Appraisal ReformAmendments of FIRREA and are otherwise in form and substance reasonably satisfactoryto the Administrative Agent and the Collateral Agent.

**SECTION5.13     Information RegardingCollateral**.

### (a)           Noteffect any change (i) in any Loan Party’s legal name, (ii) in thelocation of any Loan Party’s chief executive office, (iii) in any LoanParty’s identity or organizational structure, (iv) in any Loan Party’sFederal Taxpayer Identification Number or organizational identification number,if any, or (v) in any Loan Party’s jurisdiction of organization (in eachcase, including by merging with or into any other entity, reorganizing,dissolving, liquidating, reorganizing or organizing in any other jurisdiction),until (A) it shall have given the Collateral Agent and the Administrative Agentnot less than 30 days’ prior written notice (in the form of an Officers’Certificate), or such lesser notice period agreed to by the Collateral Agent,of its intention so to do, clearly describing such change and providing suchother information in connection therewith as the Collateral Agent or theAdministrative Agent may reasonably request and (B) it shall have takenall action reasonably satisfactory to the Collateral Agent to maintain theperfection and priority of the security interest of the Collateral Agent forthe benefit of the Secured Parties in the Collateral, if applicable.  Each Loan Party agrees to promptly providethe Collateral Agent with certified Organizational Documents reflecting any ofthe changes described in the preceding sentence.  Each Loan Party also agrees to promptlynotify the Collateral Agent of any change in the location of any office inwhich it maintains books or records relating to Collateral owned by it or anyoffice or facility at which Collateral is located (including the establishmentof any such new office or facility), other than changes in location to aMortgaged Property or a leased property subject to a Landlord Access Agreement.

 

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### (b)           Concurrentlywith the delivery of financial statements pursuant to Section 5.01(a),deliver to the Administrative Agent and the Collateral Agent a PerfectionCertificate Supplement and a certificate of a Financial Officer and the chieflegal officer of each Borrower certifying that all UCC financing statements(including fixture filings, as applicable) or other appropriate filings, recordingsor registrations, including all refilings, rerecordings and reregistrations,containing a description of the Collateral have been filed of record in eachgovernmental, municipal or other appropriate office in each jurisdictionnecessary to protect and perfect the security interests and Liens under theSecurity Documents for a period of not less than 18 months after the date ofsuch certificate (except as noted therein with respect to any continuation statementsto be filed within such period).

**SECTION5.14           AffirmativeCovenants with Respect to Leases**.  With respect to each Lease, the respectiveLoan Party shall perform all the obligations imposed upon it by the landlordunder such Lease and enforce all of the tenant’s obligations thereunder, exceptwhere the failure to so perform or enforce could not reasonably be expected toresult in a Property Material Adverse Effect.

**SECTION5.15           Post-ClosingCollateral Matters**. Execute and deliver the documents and complete the tasks set forth on Schedule 5.15,in each case within the time limits specified on such schedule.

# **ARTICLEVINEGATIVE COVENANTS**

Each Loan Party warrants, covenants and agrees witheach Lender that, so long as this Agreement shall remain in effect and untilthe Commitments have been terminated and the principal of and interest on eachLoan, all Fees and all other expenses or amounts payable under any Loan Documenthave been paid in full and all Letters of Credit have been canceled or haveexpired and all amounts drawn thereunder have been reimbursed in full, unlessthe Required Lenders shall otherwise consent in writing, no Loan Party will,nor will they cause or permit any Subsidiaries to:

**SECTION 6.01     Indebtedness**.  Incur, create, assume or permit to exist,directly or indirectly, any Indebtedness, except

### (a)           Indebtednessincurred under this Agreement and the other Loan Documents;

### (b)           (i) Indebtednessoutstanding on the Closing Date and listed on Schedule 6.01(b),(ii) refinancings or renewals thereof; *provided* that(A) any such refinancing Indebtedness is in an aggregate principal amountnot greater than the aggregate principal amount of the Indebtedness beingrenewed or refinanced, *plus* the amountof any premiums required to be paid thereon and reasonable fees and expensesassociated therewith, (B) such refinancing Indebtedness has a later orequal final maturity and longer or equal weighted average life than theIndebtedness being renewed or refinanced, (C) if such refinancing Indebtednessis issued or incurred to finance a put of the Convertible Bonds (to the extentsuch put cannot be fully financed with Revolving Loans), such Indebtednessshall be subordinated to the Obligations to the written satisfaction of theAgents, and  (D) the covenants,events of default, subordination and other provisions thereof (including anyguarantees thereof) shall be, in the aggregate, no less favorable to theLenders than those contained in the Indebtedness being renewed or refinanced;

### (c)           Indebtednessunder Hedging Obligations with respect to interest rates, foreign currencyexchange rates or commodity prices, in each case not entered into forspeculative purposes; 

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### *provided* that if such Hedging Obligationsrelate to interest rates, (i) such Hedging Obligations relate to paymentobligations on Indebtedness otherwise permitted to be incurred by the LoanDocuments and (ii) the notional principal amount of such Hedging Obligationsat the time incurred does not exceed the principal amount of the Indebtednessto which such Hedging Obligations relate;

### (d)           Indebtednesspermitted by Section 6.04(f);

### (e)           Indebtednessincurred by a Loan Party in respect of Purchase Money Obligations and CapitalLease Obligations, and refinancings or renewals thereof, in an aggregate amountnot to exceed $1.0 million at any time outstanding for all Loan Parties;

### (f)            ContingentObligations of any Loan Party in respect of Indebtedness otherwise permitted underthis Section 6.01;

### (g)           Indebtednessarising from the honoring by a bank or other financial institution of a check,draft or similar instrument inadvertently (except in the case of daylightoverdrafts) drawn against insufficient funds in the ordinary course ofbusiness; *provided*,*however*,that such Indebtedness is extinguished within five Business Days of incurrence;

### (h)           Indebtednessarising in connection with endorsement of instruments for deposit in the ordinarycourse of business;

### (i)            Earn-Outsthat have been assumed, incurred or owing by the US Borrower to Astrazeneca UKLimited pursuant to that certain Asset Purchase Agreement, dated as of February12, 2002, between the US Borrower and Astrazeneca UK Limited, as the same is ineffect and in existence on the Closing Date, in an aggregate amount not to exceed$5.0 million;

### (j)            Earn-Outsthat have been assumed, incurred or owing by the Cayman Borrower to Jagotec AGpursuant to that certain License and Marketing Agreement, dated as of December20, 2004, between the Cayman Borrower and Jagotec AG (as amended by thatcertain First Amendment to the License and Marketing Agreement, dated January31, 2005 and by that certain Second Amendment to the License and MarketingAgreement, dated January 10, 2006, and as the same is in effect and inexistence on the Closing Date), in an aggregate amount not to exceed $30.0million;

### (k)           Earn-Outsthat are assumed, incurred or owing by the US Borrower or the Cayman Borrowerafter the Closing Date to one or more sellers pursuant to PermittedAcquisitions; and

### (l)            unsecuredIndebtedness of any Loan Party in an aggregate amount not to exceed $3.0million at any time outstanding for all Loan Parties.

**SECTION 6.02     Liens**.  Create, incur, assume or permit to exist,directly or indirectly, any Lien on any property now owned or hereafteracquired by it or on any income or revenues or rights in respect of anythereof, except the following (collectively, the “**PermittedLiens**”):

### (a)           inchoateLiens for taxes, assessments or governmental charges or levies not yet due andpayable or delinquent and Liens for taxes, assessments or governmental chargesor levies, which (i) are being contested in good faith by appropriateproceedings for which adequate reserves have been established in accordancewith GAAP, which proceedings (or orders entered in connection with such proceedings)have the effect of preventing the forfeiture or sale of the property subject toany such Lien, 

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### and (ii) in the case of any such charge or claim which has or maybecome a Lien against any of the Collateral, such Lien and the contest thereofshall satisfy the Contested Collateral Lien Conditions;

### (b)           Liensin respect of property of any Company imposed by Requirements of Law, whichwere incurred in the ordinary course of business and do not secure Indebtednessfor borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’,workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liensarising in the ordinary course of business, and (i) which do not in theaggregate materially detract from the value of the property of the Companies,taken as a whole, and do not materially impair the use thereof in the operationof the business of the Companies, taken as a whole, (ii) which, if theysecure obligations that are then due and unpaid, are being contested in goodfaith by appropriate proceedings for which adequate reserves have beenestablished in accordance with GAAP, which proceedings (or orders entered inconnection with such proceedings) have the effect of preventing the forfeitureor sale of the property subject to any such Lien, and (iii) in the case ofany such Lien which has or may become a Lien against any of the Collateral,such Lien and the contest thereof shall satisfy the Contested Collateral LienConditions;

### (c)           anyLien in existence on the Closing Date after giving effect to the Refinancingand set forth on Schedule 6.02(c) and any Lien granted as areplacement or substitute therefor; *provided* thatany such replacement or substitute Lien (i) except as permitted by Section 6.01(b)(ii)(A),does not secure an aggregate amount of Indebtedness, if any, greater than thatsecured on the Closing Date and (ii) does not encumber any property otherthan the property subject thereto on the Closing Date (any such Lien, an “**Existing Lien**”);

### (d)           easements,rights-of-way, restrictions (including zoning restrictions), covenants,licenses, encroachments, protrusions and other similar charges or encumbrances,and minor title deficiencies on or with respect to any Real Property, in eachcase whether now or hereafter in existence, not (i) securing Indebtedness,(ii) individually or in the aggregate materially impairing the value ormarketability of such Real Property or (iii) individually or in theaggregate materially interfering with the ordinary conduct of the business ofthe Companies at such Real Property;

### (e)           Liensarising out of judgments, attachments or awards not resulting in a Default andin respect of which such Company shall in good faith be prosecuting an appealor proceedings for review in respect of which there shall be secured asubsisting stay of execution pending such appeal or proceedings and, in thecase of any such Lien which has or may become a Lien against any of the Collateral,such Lien and the contest thereof shall satisfy the Contested Collateral LienConditions;

### (f)            Liens(other than any Lien imposed by ERISA) (x) imposed by Requirements of Lawor deposits made in connection therewith in the ordinary course of business inconnection with workers’ compensation, unemployment insurance and other typesof social security legislation, (y) incurred in the ordinary course ofbusiness to secure the performance of tenders, statutory obligations (otherthan excise taxes), surety, stay, customs and appeal bonds, statutory bonds,bids, leases, government contracts, trade contracts, performance and return ofmoney bonds and other similar obligations (exclusive of obligations for thepayment of borrowed money) or (z) arising by virtue of deposits made inthe ordinary course of business to secure liability for premiums to insurancecarriers; *provided* that (i) with respect toclauses (x), (y) and (z) of this paragraph (f), such Liens are foramounts not yet due and payable or delinquent or, to the extent such amountsare so due and payable, such amounts are being contested in good faith byappropriate proceedings for which adequate reserves have been established inaccordance with GAAP, which proceedings for orders entered in connection withsuch proceedings have the effect of preventing the forfeiture or sale of theproperty subject to any such Lien, 

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### (ii) to the extent such Liens are not imposed by Requirements ofLaw, such Liens shall in no event encumber any property other than cash andCash Equivalents, (iii) in the case of any such Lien against any of theCollateral, such Lien and the contest thereof shall satisfy the ContestedCollateral Lien Conditions and (iv) the aggregate amount of deposits atany time pursuant to clause (y) and clause (z) of thisparagraph (f) shall not exceed $250,000 in the aggregate;

### (g)           Leasesof the properties of any Company granted by such Company to third parties, ineach case entered into in the ordinary course of such Company’s business solong as such Leases are subordinate in all respects to the Liens granted andevidenced by the Security Documents and do not, individually or in theaggregate, (i) interfere in any material respect with the ordinary conductof the business of any Company, or (ii) materially impair the use (for itsintended purposes) or the value of the property subject thereto;

### (h)           Liensarising out of conditional sale, title retention, consignment or similar arrangementsfor the sale of goods entered into by any Company in the ordinary course ofbusiness in accordance with the past practices of such Company;

### (i)            Lienssecuring Indebtedness incurred pursuant to Section 6.01(e); *provided* that any such Liens attach only to the propertybeing financed pursuant to such Indebtedness and do not encumber any other propertyof any Company;

### (j)            bankers’Liens, rights of setoff and other similar Liens existing solely with respect tocash and Cash Equivalents on deposit in one or more accounts maintained by anyCompany, in each case granted in the ordinary course of business in favor ofthe bank or banks with which such accounts are maintained, securing amountsowing to such bank with respect to cash management and operating accountarrangements, including those involving pooled accounts and nettingarrangements; *provided* that, unless such Liensare non-consensual and arise by operation of law, in no case shall any suchLiens secure (either directly or indirectly) the repayment of any Indebtedness;

### (k)           Lienson property of a person existing at the time such person is acquired or mergedwith or into or consolidated with any Company to the extent permitted hereunder(and not created in anticipation or contemplation thereof); *provided* that such Liens do not extend to property not subjectto such Liens at the time of acquisition (other than improvements thereon) andare no more favorable to the lienholders than such existing Lien;

### (l)            Liensgranted pursuant to the Security Documents to secure the Secured Obligations;

### (m)          licensesof Intellectual Property granted by any Company in the ordinary course ofbusiness and not interfering in any material respect with the ordinary conductof business of the Companies;

### (n)           thefiling of UCC financing statements solely as a precautionary measure in connectionwith operating leases or consignment of goods; and

### (o)           Liensincurred in the ordinary course of business of any Company with respect toobligations that do not in the aggregate exceed $500,000 at any timeoutstanding, so long as such Liens, to the extent covering any Collateral, arejunior to the Liens granted pursuant to the Security Documents;

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*provided*,*however*,that no consensual Liens shall be permitted to exist, directly or indirectly,on any Securities Collateral, other than Liens granted pursuant to the SecurityDocuments.

**SECTION 6.03     Sale and Leaseback Transactions**.  Enter into any arrangement, directly orindirectly, with any person whereby it shall sell or transfer any property,real or personal, used or useful in its business, whether now owned orhereafter acquired, and thereafter rent or lease such property or otherproperty which it intends to use for substantially the same purpose or purposesas the property being sold or transferred (a “**Sale andLeaseback Transaction**”) unless (i) the sale of such property ispermitted by Section 6.06 and (ii) any Liens arising inconnection with its use of such property are permitted by Section 6.02.

**SECTION 6.04     Investment, Loan and Advances**.  Directly or indirectly, lend money or credit(by way of guarantee or otherwise) or make advances to any person, or purchaseor acquire any stock, bonds, notes, debentures or other obligations orsecurities of, or any other interest in, or make any capital contribution to,any other person, or purchase or own a futures contract or otherwise becomeliable for the purchase or sale of currency or other commodities at a futuredate in the nature of a futures contract (all of the foregoing, collectively, “**Investments**”), except that the following shall be permitted:

### (a)           theCompanies may consummate the Transactions in accordance with the provisions ofthe Loan Documents;

### (b)           Investmentsoutstanding on the Closing Date and identified on Schedule 6.04(b);

### (c)           theCompanies may (i) acquire and hold accounts receivables owing to any ofthem if created or acquired in the ordinary course of business and payable ordischargeable in accordance with customary terms, (ii) invest in, acquireand hold cash and Cash Equivalents, (iii) endorse negotiable instrumentsheld for collection in the ordinary course of business or (iv) make lease,utility and other similar deposits in the ordinary course of business;

### (d)           HedgingObligations incurred pursuant to Section 6.01(c);

### (e)           loansand advances to directors, employees and officers of the US Borrower and theSubsidiaries for *bona fide* business purposes andto purchase Equity Interests of the US Borrower, in aggregate amount not toexceed $500,000 at any time outstanding; *provided* thatno loans in violation of Section 402 of the Sarbanes-Oxley Act shall bepermitted hereunder;

### (f)            Investments(i) by any Company in the US Borrower or any Domestic Guarantor,(ii) by any Foreign Subsidiary in the Cayman Borrower, (iii) by aSubsidiary that is not a Guarantor (other than the Cayman Borrower) in anyother Subsidiary that is not a Guarantor, (iv) by the US Borrower in the CaymanBorrower in the form of loans or advances as long as at the time of andimmediately after giving effect to such loan or advance (A) no Default orEvent of Default has occurred and is continuing or would result therefrom and(B) the unpaid principal amount of the US Revolving Loans is zero ($0), and theUS LC Exposure and the US Swingline Exposure are each zero ($0) and (v) bythe Borrowers in Irish Sciele in the form of loans or advances in an aggregatedamount not to exceed $15.0 million at any time outstanding for all such loansand advances by the Borrowers as long as at the time of or immediately aftergiving effect to such loan no Default or Event of Default has occurred and iscontinuing or would result therefrom; *provided* thatany Investment in the form of a loan or advance shall be evidenced by the 

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### Intercompany Note and, in the case of a loan or advance by a LoanParty, pledged by such Loan Party as Collateral pursuant to the SecurityDocuments;

### (g)           Investmentsin securities of trade creditors or customers in the ordinary course ofbusiness received upon foreclosure or pursuant to any plan of reorganization orliquidation or similar arrangement upon the bankruptcy or insolvency of suchtrade creditors or customers;

### (h)           Investmentsmade by any Borrower or any Subsidiary as a result of consideration received inconnection with an Asset Sale made in compliance with Section 6.06;and

### (i)            otherInvestments in an aggregate amount not to exceed $500,000 at any timeoutstanding.

An Investment shall be deemed to be outstanding to theextent not returned in the same form as the original Investment to any Borroweror any Guarantor.

**SECTION 6.05     Mergers and Consolidations**.  Wind up, liquidate or dissolve its affairs orenter into any transaction of merger or consolidation (or agree to do any ofthe foregoing at any future time), except that the following shall be permitted:

(a)           AssetSales in compliance with Section 6.06**;**

(b)           acquisitionsin compliance with Section 6.07;

(c)           anyCompany may merge or consolidate with or into any Borrower or any Guarantor (aslong as a Borrower is the surviving person in the case of any merger orconsolidation involving a Borrower, and a Guarantor is the surviving person andremains a Wholly Owned Subsidiary of a Borrower in any other case); *provided* that the US Borrower may not merge or consolidatewith or into the Cayman Borrower; *provided*, *further*, that the Lien on and security interest in suchproperty granted or to be granted in favor of the Collateral Agent under theSecurity Documents shall be maintained or created in accordance with theprovisions of Section 5.11 or Section 5.12, as applicable;and

(d)           anySubsidiary may dissolve, liquidate or wind up its affairs at any time; *provided* that such dissolution, liquidation or winding up,as applicable, could not reasonably be expected to have a Material AdverseEffect.

To the extent the Required Lenders or all the Lenders,as applicable, waive the provisions of this Section 6.05 withrespect to the sale of any Collateral, or any Collateral is sold as permittedby this Section 6.05, such Collateral (unless sold to a Company)shall be sold free and clear of the Liens created by the Security Documents,and, so long as the Borrowers shall have provided the Agents such certificationsor documents as any Agent shall reasonably request in order to demonstratecompliance with this Section 6.05, the Agents shall take all actionsthey deem appropriate in order to effect the foregoing.

**SECTION 6.06     Asset Sales**.  Effect any Asset Sale, or agree to effect anyAsset Sale, except that the following shall be permitted:

(a)           dispositionof used, worn out, obsolete or surplus property by any Company in the ordinarycourse of business and the abandonment or other disposition of IntellectualProperty 

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that is, in the reasonable judgment of the USBorrower, no longer economically practicable to maintain or useful in theconduct of the business of the Companies taken as a whole;

(b)           AssetSales (other than sales by any Company of all or any portion of its EquityInterests in any Subsidiary, and other than issuances of Equity Interests byany Subsidiary of any Borrower); *provided* thatthe aggregate consideration received in respect of all Asset Sales pursuant tothis clause (b) shall not exceed $500,000 in any four consecutive fiscalquarters of Borrower;

(c)           leasesof real or personal property in the ordinary course of business and in accordancewith the applicable Security Documents;

(d)           theTransactions as contemplated by the Loan Documents;

(e)           mergersand consolidations in compliance with Section 6.05; and

(f)            Investmentsin compliance with Section 6.04.

To the extent the Required Lenders or all the Lenders,as applicable, waive the provisions of this Section 6.06 withrespect to the sale of any Collateral, or any Collateral is sold as permittedby this Section 6.06, such Collateral (unless sold to a Company)shall be sold free and clear of the Liens created by the Security Documents,and, so long as the Borrowers shall have provided the Agents such certificationsor documents as any Agent shall reasonably request in order to demonstratecompliance with this Section 6.06, the Agents shall take all actionsthey deem appropriate in order to effect the foregoing.

**SECTION 6.07     Acquisitions and Licenses**.  License, purchase or otherwise acquire (inone or a series of related transactions) any part of the property (whethertangible or intangible) of any person (or agree to do any of the foregoing atany future time), except that the following shall be permitted:

(a)           CapitalExpenditures by the Borrowers and the Subsidiaries shall be permitted to the extentpermitted by Section 6.10(e);

(b)           purchasesand other acquisitions of inventory, materials, equipment and intangible propertyin the ordinary course of business;

(c)           Investmentsin compliance with Section 6.04;

(d)           leasesof real or personal property in the ordinary course of business and in accordancewith the applicable Security Documents;

(e)           theTransactions as contemplated by the Loan Documents;

(f)            PermittedAcquisitions in compliance with Section 3.12; and

(g)           mergersand consolidations in compliance with Section 6.05;

*provided* that the Lien on andsecurity interest in such property granted or to be granted in favor of theCollateral Agent under the Security Documents shall be maintained or created inaccordance with the 

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provisions of Section 5.11 or Section 5.12,as applicable, except to the extent precluded by the terms of any IntellectualProperty licenses included in such transaction, which shall be excluded frombeing subject to a Lien under the applicable Security Document only to theextent provided in such Security Document.

**SECTION 6.08     Dividends**.  Authorize, declare or pay, directly orindirectly, any Dividends with respect to any Company, except that thefollowing shall be permitted:

(a)           Dividendsby any Company to the US Borrower or any Domestic Guarantor that is a WhollyOwned Subsidiary of the US Borrower; and

(b)           Dividendsby any Company to the Cayman Borrower or any Foreign Guarantor that is a WhollyOwned Subsidiary of the Cayman Borrower

**SECTION 6.09     Transactions with Affiliates**.  Enter into, directly or indirectly, anytransaction or series of related transactions, whether or not in the ordinarycourse of business, with any Affiliate of any Company (other than between oramong the Borrowers and one or more Guarantors), other than on terms andconditions at least as favorable to such Company as would reasonably beobtained by such Company at that time in a comparable arm’s-length transactionwith a person other than an Affiliate, except that the following shall be permitted:

(a)           Dividendspermitted by Section 6.08;

(b)           Investmentspermitted by Sections 6.04(e) and (f);

(c)           reasonableand customary director, officer and employee compensation (including bonuses)and other benefits (including retirement, health, stock option and otherbenefit plans) and indemnification arrangements, in each case approved by theBoard of Directors of the US Borrower;

(d)           transactionswith customers, clients, suppliers, joint venture partners or purchasers orsellers of goods and services, in each case in the ordinary course of businessand otherwise not prohibited by the Loan Documents;

(e)           theexistence of, and the performance by any Loan Party of its obligations underthe terms of, any limited liability company, limited partnership or otherOrganizational Document or securityholders agreement (including anyregistration rights agreement or purchase agreement related thereto) to whichit is a party on the Closing Date, and which has been disclosed to the Lendersin writing as in effect on the Closing Date, and similar agreements that it mayenter into thereafter; *provided*,*however*, that the existence of, or the performance by anyLoan Party of obligations under, any amendment to any such existing agreementor any such similar agreement entered into after the Closing Date shall only bepermitted by this Section 6.09(e) to the extent not more adverse tothe interest of the Lenders in any material respect, when taken as a whole,than any of such documents and agreements as in effect on the Closing Date;

(f)            salesof Qualified Capital Stock of the US Borrower to Affiliates of the US Borrowernot otherwise prohibited by the Loan Documents and the granting of registrationand other customary rights in connection therewith;

 

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(g)           anytransaction with an Affiliate where the only consideration paid by any LoanParty is Qualified Capital Stock of the US Borrower; and

(h)           theTransactions as contemplated by the Loan Documents.

## **SECTION 6.10              FinancialCovenants.**

### (a)           MaximumTotal Leverage Ratio.  Permitthe  Total Leverage Ratio, at any dateduring any period set forth in the table below, to exceed the ratio set forthopposite such period in the table below:

| Test Period                        | ** ** | **Total Leverage Ratio** | ** ** |
|-----------------------------------------|------------|------------------------------------|------------|
| Closing  Date—September 30, 2007   |       | 3.00 to 1.00                       |       |
| October 1,  2007—December 31, 2008 |       | 2.75 to 1.00                       |       |
| January 1, 2009 and  thereafter         |       | 2.50 to 1.00                       |       |

 

### (b)           MinimumFixed Charge Coverage Ratio.  Permitthe Consolidated Fixed Charge Coverage Ratio, for any Test Period to be lessthan 2.25 to 1.00.

### (c)           Limitationon Capital Expenditures.  Permit theaggregate amount of Capital Expenditures made in any fiscal year to be greaterthan $5.0 million *provided*,*however,*that (x) if the aggregate amount of Capital Expenditures made in anyfiscal year shall be less than the maximum amount of Capital Expenditurespermitted under this Section 6.10(c) for such fiscal year (beforegiving effect to any carryover), then an amount of such shortfall not exceeding50% of such maximum amount may be added to the amount of Capital Expenditurespermitted under this Section 6.10(e) for the immediately succeeding(but not any other) fiscal year, and (y) in determining whether any amountis available for carryover, the amount expended in any fiscal year shall firstbe deemed to be from the amount allocated to such fiscal year (before givingeffect to any carryover).

### For thepurposes of calculating compliance with the above Total Leverage Ratio and theMinimum Fixed Charge Coverage Ratio covenants, the terms ConsolidatedIndebtedness and Indebtedness shall not include Earn-Outs to the extent suchEarn-Outs are permitted under  Sections 6.01(i), (j) or (k).

**SECTION 6.11     Prepayments of OtherIndebtedness; Modifications of Organizational Documents and Other Documents,etc.**  Directly orindirectly:

(a)           make(or give any notice in respect thereof) any voluntary or optional payment orprepayment on or redemption or acquisition for value of, or any prepayment orredemption of any Indebtedness outstanding under any Subordinated Indebtedness,except as otherwise permitted by this Agreement;

(b)           exceptas otherwise provided in Section 6.22, amend or modify, or permit theamendment or modification of, any document governing Subordinated Indebtednessin any manner that is adverse in any material respect to the interests of theLenders; or

 

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(c)           terminate,amend or modify any of its Organizational Documents (including (x) by the filingor modification of any certificate of designation and (y) any election to treatany Pledged Securities (as defined in the Security Agreement) as a “security”under Section 8-103 of the UCC other than concurrently with the delivery ofcertificates representing such Pledged Securities to the Collateral Agent) orany agreement to which it is a party with respect to its Equity Interests(including any stockholders’ agreement), or enter into any new agreement withrespect to its Equity Interests, other than any such amendments ormodifications or such new agreements which are not adverse in any materialrespect to the interests of the Lenders; *provided* thatthe US Borrower may issue such Equity Interests, so long as such issuance isnot prohibited by Section 6.13 or any other provision of thisAgreement, and may amend or modify its Organizational Documents to authorizeany such Equity Interests.

**SECTION 6.12     Limitation on CertainRestrictions on Subsidiaries**. Directly or indirectly, create or otherwise cause or suffer to exist orbecome effective any encumbrance or restriction on the ability of anySubsidiary to (a) pay dividends or make any other distributions on its capitalstock or any other interest or participation in its profits owned by anyBorrower or any Subsidiary, or pay any Indebtedness owed to a Borrower or aSubsidiary, (b) make loans or advances to any Borrower or any Subsidiaryor (c) transfer any of its properties to any Borrower or any Subsidiary,except for such encumbrances or restrictions existing under or by reason of(i) applicable Requirements of Law; (ii) this Agreement and the otherLoan Documents; (iii) customary provisions restricting subletting orassignment of leasehold interests contained in any lease governing a leaseholdinterest of a Subsidiary; (iv) customary provisions restricting assignmentof any agreement entered into by a Subsidiary in the ordinary course ofbusiness; (v) any holder of a Lien permitted by Section 6.02restricting the transfer of the property subject thereto; (vi) customaryrestrictions and conditions contained in any agreement relating to the sale ofany property permitted under Section 6.06 pending the consummationof such sale; (vii) any agreement in effect at the time such Subsidiarybecomes a Subsidiary of a Borrower, so long as such agreement was not enteredinto in connection with or in contemplation of such person becoming aSubsidiary of a Borrower; (viii) without affecting the Loan Parties’obligations under Section 5.11, customary provisions in partnershipagreements, limited liability company organizational governance documents,asset sale and stock sale agreements and other similar agreements entered intoin the ordinary course of business that restrict the transfer of ownershipinterests in such partnership, limited liability company or similar person;(ix) restrictions on cash or other deposits or net worth imposed by suppliersor landlords under contracts entered into in the ordinary course of business;(x) any instrument governing Indebtedness assumed in connection with anyPermitted Acquisition, which encumbrance or restriction is not applicable toany person, or the properties or assets of any person, other than the person orthe properties or assets of the person so acquired; (xi) in the case ofany joint venture which is not a Loan Party in respect of any matters referredto in clauses (b) and (c) above, restrictions in such person’sOrganizational Documents or pursuant to any joint venture agreement orstockholders agreements solely to the extent of the Equity Interests of or propertyheld in the subject joint venture or other entity; or (xii) anyencumbrances or restrictions imposed by any amendments or refinancings that areotherwise permitted by the Loan Documents of the contracts, instruments orobligations referred to in clauses (iii) or (vii) above; *provided* that such amendments or refinancings are no morematerially restrictive with respect to such encumbrances and restrictions thanthose prior to such amendment or refinancing.

**SECTION6.13     Limitation on Issuanceof Capital Stock**.

### (a)           Withrespect to the US Borrower, issue any Equity Interest that is not QualifiedCapital Stock.

 

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### (b)           Withrespect to the US Borrower or any Subsidiary, issue any Equity Interest (includingby way of sales of treasury stock) or any options or warrants to purchase, orsecurities convertible into, any Equity Interest, except (i) for stocksplits, stock dividends and additional issuances of Equity Interests which donot decrease the percentage ownership of the US Borrower or any Subsidiaries inany class of the Equity Interest of such Subsidiary; and (ii) Subsidiariesof Borrower formed after the Closing Date in accordance with Section 6.14may issue Equity Interests to Borrower or the Subsidiary of Borrower which isto own such Equity Interests.  All EquityInterests issued in accordance with this Section 6.13(b) shall, tothe extent required by Sections 5.11 and 5.12 or anySecurity Agreement or if such Equity Interests are issued by any Borrower, bedelivered to the Collateral Agent for pledge pursuant to the applicableSecurity Document.

**SECTION 6.14     Limitation on Creation ofSubsidiaries**.  Establish,create or acquire any additional Subsidiaries without the prior written consentof the Required Lenders; *provided* that,without such consent, the Borrowers may (i) establish or create one ormore Wholly Owned Subsidiaries of the Borrowers, (ii) establish, create oracquire one or more Subsidiaries in connection with an Investment made pursuantto Section 6.04(f) or (iii) acquire one or more Subsidiaries inconnection with a Permitted Acquisition, so long as, in each case, Section 5.11(b)shall be complied with.

**SECTION6.15     Business**.  Engage (directly or indirectly) in anybusiness other than those businesses in which Borrower and its Subsidiaries areengaged on the Closing Date as described in the Confidential InformationMemorandum.

**SECTION 6.16     Limitation on Accounting Changes**.  Make or permit any change in accountingpolicies or reporting practices, without the consent of the Required Lenders,which consent shall not be unreasonably withheld, except changes that are requiredby GAAP.

**SECTION 6.17     Fiscal Year**.  Change its fiscal year-end to a date otherthan December 31.

**SECTION 6.18     Lease Obligations**.  Create, incur, assume or suffer to exist anyobligations as lessee for the rental or hire of real or personal property ofany kind under leases or agreements to lease having an original term of oneyear or more that would cause the direct and contingent liabilities of the USBorrower and its Subsidiaries, on a consolidated basis, in respect of all suchobligations to exceed $15.0 million payable in any period of 12 consecutivemonths.

**SECTION 6.19     No Further Negative Pledge**.  Enter into any agreement, instrument, deed orlease which prohibits or limits the ability of any Loan Party to create, incur,assume or suffer to exist any Lien upon any of their respective properties orrevenues, whether now owned or hereafter acquired, or which requires the grantof any security for an obligation if security is granted for anotherobligation, except the following: (1) this Agreement and the other Loan Documents; (2) covenantsin documents creating Liens permitted by Section 6.02 prohibitingfurther Liens on the properties encumbered thereby; (3) any otheragreement that does not restrict in any manner (directly or indirectly) Lienscreated pursuant to the Loan Documents on any Collateral securing the SecuredObligations and does not require the direct or indirect granting of any Liensecuring any Indebtedness or other obligation by virtue of the granting ofLiens on or pledge of property of any Loan Party to secure the SecuredObligations; and (4) any prohibition or limitation that (a) existspursuant to applicable Requirements of Law, (b) consists of customaryrestrictions and conditions contained in any agreement relating to the sale ofany property permitted under Section 6.06 pending the consummationof such sale, (c) restricts subletting or assignment of leasehold 

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interests contained in any lease governing a leaseholdinterest of a Borrower or a Subsidiary, (d) exists in any agreement ineffect at the time such Subsidiary becomes a Subsidiary of a Borrower, so longas such agreement was not entered into in contemplation of such person becominga Subsidiary or (e) is imposed by any amendments or refinancings that areotherwise permitted by the Loan Documents of the contracts, instruments orobligations referred to in clause (3) or (4)(d); *provided*that such amendments and refinancings are no more materially restrictive withrespect to such prohibitions and limitations than those prior to such amendmentor refinancing.

**SECTION 6.20     Anti-Terrorism Law; Anti-MoneyLaundering**.

### (a)           Directlyor indirectly, (i) knowingly conduct any business or engage in making orreceiving any contribution of funds, goods or services to or for the benefit ofany person described in Section 3.21, (ii) knowingly deal in,or otherwise engage in any transaction relating to, any property or interestsin property blocked pursuant to the Executive Order or any other Anti-TerrorismLaw, or (iii) knowingly engage in or conspire to engage in any transactionthat evades or avoids, or has the purpose of evading or avoiding, or attemptsto violate, any of the prohibitions set forth in any Anti-Terrorism Law (andthe Loan Parties shall deliver to the Lenders any certification or otherevidence requested from time to time by any Lender in its reasonablediscretion, confirming the Loan Parties’ compliance with this Section 6.20).

### (b)           Causeor permit any of the funds of such Loan Party that are used to repay the Loansto be derived from any unlawful activity with the result that the making of theLoans would be in violation of any Requirement of Law.

**SECTION 6.21     Embargoed Person**.  Cause or permit (a) any of the funds orproperties of the Loan Parties that are used to repay the Loans to constituteproperty of, or be beneficially owned directly or indirectly by, any personsubject to sanctions or trade restrictions under United States law (“**Embargoed Person**” or “**Embargoed Persons**”)that is identified on (1) the “List of Specially Designated Nationals andBlocked Persons” maintained by OFAC and/or on any other similar list maintainedby OFAC pursuant to any authorizing statute including, but not limited to, theInternational Emergency Economic Powers Act, 50 U.S.C. §§ 1701 *et seq*., The Trading with the Enemy Act, 50 U.S.C. App. 1 *et seq*., and any Executive Order or Requirement of Lawpromulgated thereunder, with the result that the investment in the Loan Parties(whether directly or indirectly) is prohibited by a Requirement of Law, or theLoans made by the Lenders would be in violation of a Requirement of Law, or(2) the Executive Order, any related enabling legislation or any othersimilar Executive Orders or (b) any Embargoed Person to have any direct orindirect interest, of any nature whatsoever in the Loan Parties, with theresult that the investment in the Loan Parties (whether directly or indirectly)is prohibited by a Requirement of Law or the Loans are in violation of aRequirement of Law.

**SECTION 6.22     Convertible Bond Indenture**.

### (a)           Agreeor consent to any amendment to or modification or waiver of Article XI of theConvertible Bond Indenture that is in any way adverse to any Agent or anyLender.

### (b)           Agreeor consent to any amendment to or modification or waiver of the ConvertibleBond Indenture (other than Article XI thereof) that is in any way material andadverse to any Agent or any Lender.

## ** **

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**SECTION 6.23     Foreign Subsidiaries**.

No Foreign Subsidiary of the US Borrower (other thanthe Cayman Borrower) may hold any Intellectual Property, and no ForeignSubsidiary of the US Borrower (other than the Cayman Borrower and Irish Sciele)may hold any material properties, become liable for any material obligations(whether contingent or actual), engage in any material trade or business, orconduct any material business activity, other than (1) the issuance of itsEquity Interests to  the US Borrower orany Wholly Owned Subsidiary of the US Borrower or (2) the licensing ofIntellectual Property from one or more Companies and activities incidentalthereto.  Neither any  Borrower nor any Subsidiary shall engage inany transactions with any such Foreign Subsidiary in violation of theimmediately preceding sentence.

# **ARTICLEVII**

# **GUARANTEE**

**SECTION 7.01     The Guarantees**.

### (a)           TheForeign Guarantors hereby jointly and severally guarantee, as a primary obligorand not as a surety to each Secured Party and their respective successors andassigns, the prompt payment in full when due (whether at stated maturity, byrequired prepayment, declaration, demand, by acceleration or otherwise) of theprincipal of and interest (including any interest, fees, costs or charges thatwould accrue but for the provisions of the Title 11 of the United States Codeafter any bankruptcy or insolvency petition under Title 11 of the United StatesCode) on the Cayman Revolving Loans made by the Lenders to, and the CaymanNotes held by each Lender of, the Cayman Borrower, and all other Secured CaymanObligations from time to time owing to the Secured Parties by any Foreign LoanParty under any Loan Document or any Hedging Agreement or Treasury ServicesAgreement entered into with a counterparty that is a Secured Party, in eachcase strictly in accordance with the terms thereof (such obligations beingherein collectively called the “**ForeignGuaranteed Obligations**”).  TheForeign Guarantors hereby jointly and severally agree that if the CaymanBorrower or other Foreign Guarantor(s) shall fail to pay in full when due(whether at stated maturity, by acceleration or otherwise) any of the ForeignGuaranteed Obligations, the Foreign Guarantors will promptly pay the same incash, without any demand or notice whatsoever, and that in the case of anyextension of time of payment or renewal of any of the Foreign GuaranteedObligations, the same will be promptly paid in full when due (whether atextended maturity, by acceleration or otherwise) in accordance with the termsof such extension or renewal.

### (b)           TheDomestic Guarantors hereby jointly and severally guarantee, as a primaryobligor and not as a surety to each Secured Party and their respectivesuccessors and assigns, the prompt payment in full when due (whether at statedmaturity, by required prepayment, declaration, demand, by acceleration orotherwise) of the principal of and interest (including any interest, fees,costs or charges that would accrue but for the provisions of the Title 11 ofthe United States Code after any bankruptcy or insolvency petition under Title11 of the United States Code) on the Loans made by the Lenders to, and theNotes held by each Lender of, the Borrowers, and all other Secured Obligationsfrom time to time owing to the Secured Parties by any Loan Party (including,without limitation, by any Foreign Guarantor pursuant to its guarantee in Section7.01(a)) under any Loan Document or any Hedging Agreement or TreasuryServices Agreement entered into with a counterparty that is a Secured Party, ineach case strictly in accordance with the terms thereof (such obligations beingherein collectively called the “**GuaranteedObligations**”).  The DomesticGuarantors hereby jointly and severally agree that if the US Borrower, the CaymanBorrower or other Guarantor(s) shall fail to pay in full when due (whether atstated maturity, by acceleration or otherwise) any of the GuaranteedObligations, the Domestic Guarantors will promptly pay the same in cash,without any demand or notice whatsoever, and that in the case of any extensionof time 

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### of payment or renewal of any of the Guaranteed Obligations, the samewill be promptly paid in full when due (whether at extended maturity, byacceleration or otherwise) in accordance with the terms of such extension or renewal.

**SECTION 7.02     Obligations Unconditional**.  The obligations of the Foreign Guarantorsunder Section 7.01(a) shall be joint and several with respect to theForeign Guaranteed Obligations, and the obligations of the Domestic Guarantorsunder Section 7.01(b) shall be joint and several with respect to theGuaranteed Obligations.  The obligationsof the Foreign Guarantors under Section 7.01(a) and the obligationsof the Domestic Guarantors under Section 7.01(b) shall constitute aguaranty of payment and to the fullest extent permitted by applicableRequirements of Law, are absolute, irrevocable and unconditional, irrespectiveof the value, genuineness, validity, regularity or enforceability of theForeign Guaranteed Obligations or the Guaranteed Obligations under this Agreement,the Notes, if any, or any other agreement or instrument referred to herein ortherein, or any substitution, release or exchange of any other guarantee of orsecurity for any of the Foreign Guaranteed Obligations or the GuaranteedObligations, and, irrespective of any other circumstance whatsoever that mightotherwise constitute a legal or equitable discharge or defense of a surety orGuarantor (except for payment in full). Without limiting the generality of the foregoing, it is agreed that theoccurrence of any one or more of the following shall not alter or impair theliability of the Guarantors hereunder which shall remain absolute, irrevocableand unconditional under any and all circumstances as described above:

#### (i)      at any time or from time to time, withoutnotice to the Guarantors, the time for any performance of or compliance withany of the Foreign Guaranteed Obligations or the Guaranteed Obligations shallbe extended, or such performance or compliance shall be waived;

#### (ii)     any of the acts mentioned in any of theprovisions of this Agreement or the Notes, if any, or any other agreement orinstrument referred to herein or therein shall be done or omitted;

#### (iii)    the maturity of any of the ForeignGuaranteed Obligations or the Guaranteed Obligations shall be accelerated, orany of the Foreign Guaranteed Obligations or the Guaranteed Obligations shallbe amended in any respect, or any right under the Loan Documents or any otheragreement or instrument referred to herein or therein shall be amended orwaived in any respect or any other guarantee of any of the Foreign GuaranteedObligations or the Guaranteed Obligations or any security therefor shall bereleased or exchanged in whole or in part or otherwise dealt with;

#### (iv)    any Lien or security interest granted to, orin favor of, Issuing Bank or any Lender or Agent as security for any of theForeign Guaranteed Obligations or the Guaranteed Obligations shall fail to beperfected; or

#### (v)     the release of any other Guarantor pursuantto Section 7.09.

The Guarantors hereby expressly waive diligence,presentment, demand of payment, protest and all notices whatsoever, and anyrequirement that any Secured Party exhaust any right, power or remedy orproceed against any Borrower under this Agreement or the Notes, if any, or anyother agreement or instrument referred to herein or therein, or against anyother person under any other guarantee of, or security for, any of the ForeignGuaranteed Obligations or the Guarantee Obligations.  The Guarantors waive any and all notice ofthe creation, renewal, extension, waiver, termination or accrual of any of theForeign Guaranteed Obligations or the Guaranteed Obligations and notice of or 

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proof of reliance by any Secured Party upon theseGuarantees or acceptance of these Guarantees, and the Foreign GuaranteedObligations and the Guaranteed Obligations, and any of them, shall conclusivelybe deemed to have been created, contracted or incurred in reliance upon theseGuarantees, and all dealings between the Borrowers and the Secured Partiesshall likewise be conclusively presumed to have been had or consummated inreliance upon these Guarantees.  TheseGuarantees shall be construed as a continuing, absolute, irrevocable andunconditional guarantee of payment without regard to any right of offset with respectto the Foreign Guaranteed Obligations or the Guaranteed Obligations at any timeor from time to time held by Secured Parties, and the obligations andliabilities of the Guarantors hereunder shall not be conditioned or contingentupon the pursuit by the Secured Parties or any other person at any time of anyright or remedy against any Borrower or against any other person which may beor become liable in respect of all or any part of the Foreign GuaranteedObligations or the Guaranteed Obligations or against any collateral security orguarantee therefor or right of offset with respect thereto.  These Guarantees shall remain in full forceand effect and be binding in accordance with and to the extent of its termsupon the Guarantors and the successors and assigns thereof, and shall inure tothe benefit of the Lenders, and their respective successors and assigns,notwithstanding that from time to time during the term of this Agreement theremay be no Foreign Guaranteed Obligations or the Guaranteed Obligations outstanding.

**SECTION 7.03     Reinstatement**.

### (a)           Theobligations of the Foreign Guarantors under this Article VII shallbe automatically reinstated if and to the extent that for any reason anypayment by or on behalf of the Cayman Borrower or any other Foreign Loan Partyin respect of the Foreign Guaranteed Obligations is rescinded or must beotherwise restored by any holder of any of the Foreign Guaranteed Obligations,whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

### (b)           Theobligations of the Domestic Guarantors under this Article VII shallbe automatically reinstated if and to the extent that for any reason anypayment by or on behalf of the US Borrower, the Cayman Borrower or any otherForeign Loan Party or Domestic Loan Party in respect of the GuaranteedObligations is rescinded or must be otherwise restored by any holder of any ofthe Guaranteed Obligations, whether as a result of any proceedings inbankruptcy or reorganization or otherwise.

**SECTION 7.04     Subrogation; Subordination**

.  Each ForeignGuarantor hereby agrees that until the indefeasible payment and satisfaction infull in cash of all Foreign Guaranteed Obligations and the expiration andtermination of the Commitments of the Lenders under this Agreement it shallwaive any claim and shall not exercise any right or remedy, direct or indirect,arising by reason of any performance by it of its guarantee in Section 7.01(a),whether by subrogation or otherwise, against the Cayman Borrower or any otherForeign Guarantor of any of the Foreign Guaranteed Obligations or any securityfor any of the Foreign Guaranteed Obligations. Any Indebtedness of any Loan Party permitted pursuant to Section 6.01(d)shall be subordinated to such Loan Party’s Secured Cayman Obligations in themanner set forth in the Intercompany Note evidencing such Indebtedness.

### (a)           EachDomestic Guarantor hereby agrees that until the indefeasible payment andsatisfaction in full in cash of all Guaranteed Obligations and the expirationand termination of the Commitments of the Lenders under this Agreement it shallwaive any claim and shall not exercise any right or remedy, direct or indirect,arising by reason of any performance by it of its guarantee in Section 7.01(b),whether by subrogation or otherwise, against the Cayman Borrower, the USBorrower or 

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### any other Guarantor of any of the Guaranteed Obligations or anysecurity for any of the Guaranteed Obligations. Any Indebtedness of any Loan Party permitted pursuant to Section 6.01(d)shall be subordinated to such Loan Party’s Secured Obligations in the mannerset forth in the Intercompany Note evidencing such Indebtedness.

**SECTION 7.05     Remedies**

### (a)           TheForeign Guarantors jointly and severally agree that, as between the ForeignGuarantors and the Lenders, the obligations of the Cayman Borrower under thisAgreement and the Cayman Notes, if any, may be declared to be forthwith due andpayable as provided in Section 8.01 (and shall be deemed to havebecome automatically due and payable in the circumstances provided in Section 8.01)for purposes of Section 7.01(a), notwithstanding any stay,injunction or other prohibition preventing such declaration (or suchobligations from becoming automatically due and payable) as against the CaymanBorrower and that, in the event of such declaration (or such obligations beingdeemed to have become automatically due and payable), such obligations (whetheror not due and payable by the Cayman Borrower) shall forthwith become due andpayable by the Foreign Guarantors for purposes of Section 7.01(a).

### (b)           TheDomestic Guarantors jointly and severally agree that, as between the DomesticGuarantors and the Lenders, the obligations of the Cayman Borrower and the USBorrower under this Agreement and the Cayman Notes and the US Notes, if any,may be declared to be forthwith due and payable as provided in Section 8.01(and shall be deemed to have become automatically due and payable in thecircumstances provided in Section 8.01) for purposes of Section 7.01(a),notwithstanding any stay, injunction or other prohibition preventing suchdeclaration (or such obligations from becoming automatically due and payable)as against the Cayman Borrower and the US Borrower and that, in the event ofsuch declaration (or such obligations being deemed to have become automaticallydue and payable), such obligations (whether or not due and payable by theCayman Borrower and the US Borrower) shall forthwith become due and payable bythe Domestic Guarantors for purposes of Section 7.01(b).

**SECTION 7.06     Instrument for the Payment ofMoney**

### (a)           EachForeign Guarantor hereby acknowledges that the guarantee in this Article VIIconstitutes an instrument for the payment of money, and consents and agreesthat any Lender or Agent, at its sole option, in the event of a dispute by suchForeign Guarantor in the payment of any moneys due hereunder, shall have theright to bring a motion-action under New York CPLR Section 3213.

### (b)           EachDomestic Guarantor hereby acknowledges that the guarantee in this Article VIIconstitutes an instrument for the payment of money, and consents and agreesthat any Lender or Agent, at its sole option, in the event of a dispute by suchDomestic Guarantor in the payment of any moneys due hereunder, shall have theright to bring a motion-action under New York CPLR Section 3213.

## ** **

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**SECTION 7.07     Continuing Guarantee**

### (a)           Theguarantee in this Article VII by the Foreign Guarantors is acontinuing guarantee of payment, and shall apply to all Foreign GuaranteedObligations whenever arising.

### (b)           Theguarantee in this Article VII by the Domestic Guarantors is acontinuing guarantee of payment, and shall apply to all Guaranteed Obligationswhenever arising.

**SECTION 7.08     General Limitation on GuaranteeObligations**.  In anyaction or proceeding involving any state corporate limited partnership orlimited liability company law, or any applicable state, federal or foreignbankruptcy, insolvency, reorganization or other law affecting the rights ofcreditors generally, if the obligations of any Guarantor under Section 7.01would otherwise be held or determined to be void, voidable, invalid orunenforceable, or subordinated to the claims of any other creditors, on accountof the amount of its liability under Section 7.01, then, notwithstandingany other provision to the contrary, the amount of such liability shall,without any further action by such Guarantor, any Loan Party or any other person,be automatically limited and reduced to the highest amount  that is valid and enforceable and not subordinatedto the claims of other creditors as determined in such action or proceeding.

**SECTION 7.09     Release of Guarantors**.  If, in compliance with the terms andprovisions of the Loan Documents, all or substantially all of the EquityInterests or property of any Guarantor (other than the US Borrower) are sold orotherwise transferred (a “**Transferred Guarantor**”)to a person or persons, none of which is a Borrower or a Subsidiary, suchTransferred Guarantor shall, upon the consummation of such sale or transfer, beautomatically released from its obligations under this Agreement (includingunder Section 10.03 hereof) and its obligations to pledge and grantany Collateral owned by it pursuant to any Security Document and, in the caseof a sale of all or substantially all of the Equity Interests of theTransferred Guarantor, the pledge of such Equity Interests to the CollateralAgent pursuant to the Security Agreements shall be automatically released, and,so long as the Borrowers shall have provided the Agents such certifications ordocuments as any Agent shall reasonably request, the Collateral Agent shalltake such actions as are necessary to effect each release described in this Section 7.09in accordance with the relevant provisions of the Security Documents, so longas the Borrowers shall have provided the Agents such certifications ordocuments as any Agent shall reasonably request in order to demonstratecompliance with this Agreement.

# **ARTICLEVIII**

# **EVENTS OFDEFAULT**

**SECTION 8.01     Events of Default**.  Upon the occurrence and during thecontinuance of the following events (“**Events of Default**”):

(a)           defaultshall be made in the payment of any principal of any Loan or any ReimbursementObligation when and as the same shall become due and payable, whether at thedue date thereof or at a date fixed for prepayment (other than for voluntaryprepayment) thereof or by acceleration thereof or otherwise;

(b)           defaultshall be made in the payment of any interest on any Loan or any Fee or anyother amount (other than an amount referred to in paragraph (a) above) dueunder any Loan 

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Document, when and as the same shall becomedue and payable, and such default shall continue unremedied for a period ofthree Business Days;

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

(d)           defaultshall be made in the due observance or performance by any Company of anycovenant, condition or agreement contained in Section 5.02, 5.03(a)or 5.08 or in Article VI;

(e)           defaultshall be made in the due observance or performance by any Company of anycovenant, condition or agreement contained in any Loan Document (other thanthose specified in paragraphs (a), (b) or (d) immediately above) and suchdefault shall continue unremedied or shall not be waived for a period of30 days after written notice thereof from the Administrative Agent or anyLender to Borrower;

(f)            anyCompany shall (i) fail to pay any principal or interest, regardless ofamount, due in respect of any Indebtedness (other than the Obligations), whenand as the same shall become due and payable beyond any applicable graceperiod, or (ii) fail to observe or perform any other term, covenant,condition or agreement contained in any agreement or instrument evidencing orgoverning any such Indebtedness if the effect of any failure referred to inthis clause (ii) is to cause, or to permit the holder or holders of suchIndebtedness or a trustee or other representative on its or their behalf (withor without the giving of notice, the lapse of time or both, and without regardto any subordination provision that may be contained in such agreement orinstrument) to cause, such Indebtedness to become due prior to its statedmaturity or become subject to a mandatory offer purchase by the obligor; *provided* that it shall not constitute an Event of Defaultpursuant to this paragraph (f) unless the aggregate amount of all suchIndebtedness referred to in clauses (i) and (ii) exceeds $1.0 million atany one time (*provided* that, in the case ofHedging Obligations, the amount counted for this purpose shall be the amountpayable by all Companies if such Hedging Obligations were terminated at suchtime);

(g)           aninvoluntary proceeding shall be commenced or an involuntary petition shall befiled in a court of competent jurisdiction seeking (i) relief in respectof any Company, or of a substantial part of the property of any Company, underTitle 11 of the U.S. Code, as now constituted or hereafter amended, or anyother federal, state or foreign bankruptcy, insolvency, receivership or similarlaw; (ii) the appointment of a receiver, trustee, custodian, sequestrator,conservator or similar official for any Company or for a substantial part ofthe property of any Company; or (iii) the winding-up or liquidation of anyCompany; and such proceeding or petition shall continue undismissed for60 days or an order or decree approving or ordering any of the foregoingshall be entered;

(h)           anyCompany shall (i) voluntarily commence any proceeding or file any petitionseeking relief under Title 11 of the United States Code, as nowconstituted or hereafter amended, or any other federal, state or foreignbankruptcy, insolvency, receivership or similar law; (ii) consent to theinstitution of, or fail to contest in a timely and appropriate manner, any proceedingor the filing of any petition described in clause (g) above;(iii) apply for or consent to 

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the appointment of a receiver, trustee,custodian, sequestrator, conservator or similar official for any Company or fora substantial part of the property of any Company; (iv) file an answeradmitting the material allegations of a petition filed against it in any suchproceeding; (v) make a general assignment for the benefit of creditors;(vi) become unable, admit in writing its inability or fail generally topay its debts as they become due; (vii) take any action for the purpose ofeffecting any of the foregoing; or (viii) wind up or liquidate;

(i)            oneor more judgments, orders or decrees for the payment of money in an aggregateamount in excess of $1.0 million shall be rendered against any Company or anycombination thereof and the same shall remain undischarged, unvacated orunbonded for a period of 30 consecutive days during which execution shall notbe effectively stayed, or any action shall be legally taken by a judgment creditorto levy upon properties of any Company to enforce any such judgment;

(j)            oneor more ERISA Events or noncompliance with respect to Foreign Plans****shall have occurred that, in the opinionof the Required Lenders, when taken together with all other such ERISA Eventsand noncompliance with respect to Foreign Plans that have occurred, couldreasonably be expected to result in liability of any Company and its ERISAAffiliates in an aggregate amount exceeding $500,000 or in the imposition of aLien on any properties of a Company;

(k)           anysecurity interest and Lien purported to be created by any Security Documentshall cease to be in full force and effect (including any security interest andLien in the Cayman Charged Property shall cease to be in full force and effectby reason of any Change in Law with respect to Cayman Islands law orotherwise), or shall cease to give the Collateral Agent, for the benefit of theSecured Parties, the Liens, rights, powers and privileges purported to be createdand granted under such Security Document (including a perfected first prioritysecurity interest in and Lien on all of the Collateral thereunder (except asotherwise expressly provided in such Security Document)) in favor of theCollateral Agent, or shall be asserted by any Borrower or any other Loan Partynot to be a valid, perfected, first priority (except as otherwise expressly providedin this Agreement or such Security Document) security interest in or Lien onthe Collateral covered thereby;

(l)            anyLoan Document or any material provisions thereof shall at any time and for anyreason be declared by a court of competent jurisdiction to be null and void, ora proceeding shall be commenced by any Loan Party or any other person, or byany Governmental Authority, seeking to establish the invalidity orunenforceability thereof (exclusive of questions of interpretation of anyprovision thereof), or any Loan Party shall repudiate or deny any portion ofits liability or obligation for the Obligations;

(m)          thereshall have occurred a Change in Control;

(n)           thereshall have occurred the termination of, or the receipt by any Loan Party ofnotice of the termination of, or the occurrence of any event or condition whichwould, with the passage of time or the giving of notice or both, constitute anevent of default under or permit the termination of, any one or more materialagreements or licenses of any Company; or

(o)           anyCompany shall be prohibited or otherwise restrained from conducting thebusiness theretofore conducted by it in any manner that has or could reasonablybe expected to 

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result in a Material Adverse Effect by virtueof any determination, ruling, decision, decree or order of any court orGovernmental Authority of competent jurisdiction;

then, and in every such event (other than an eventwith respect to a Borrower described in paragraph (g) or (h) above), andat any time thereafter during the continuance of such event, the AdministrativeAgent may, and at the request of the Required Lenders shall, by notice to aBorrower, take either or both of the following actions, at the same ordifferent times:  (i) terminateforthwith the Commitments and (ii) declare the Loans and ReimbursementObligations then outstanding to be forthwith due and payable in whole or inpart, whereupon the principal of the Loans and Reimbursement Obligations so declaredto be due and payable, together with accrued interest thereon and any unpaidaccrued Fees and all other Obligations of a Borrower accrued hereunder andunder any other Loan Document, shall become forthwith due and payable, withoutpresentment, demand, protest or any other notice of any kind, all of which arehereby expressly waived by the Borrowers and the Guarantors, anything containedherein or in any other Loan Document to the contrary notwithstanding; and inany event, with respect to the Borrowers described in paragraph (g) or (h)above, the Commitments shall automatically terminate and the principal of theLoans and Reimbursement Obligations then outstanding, together with accruedinterest thereon and any unpaid accrued Fees and all other US Obligations ofthe US Borrower and Cayman Obligations of the Cayman Borrower accrued hereunderand under any other Loan Document, shall automatically become due and payable,without presentment, demand, protest or any other notice of any kind, all ofwhich are hereby expressly waived by the Borrowers and the Guarantors, anythingcontained herein or in any other Loan Document to the contrary notwithstanding.

**SECTION 8.02     Application of Proceeds**. The proceeds received by the CollateralAgent in respect of any sale of, collection from or other realization upon allor any part of the Collateral pursuant to the exercise by the Collateral Agentof its remedies shall be applied, in full or in part, together with any othersums then held by the Collateral Agent pursuant to this Agreement, promptly bythe Collateral Agent as follows:

**A.           **If such Collateral is that of anyDomestic Loan Party, then:

(a)           *First*, to the payment of all reasonable costs and expenses,fees, commissions and taxes of such sale, collection or other realizationincluding compensation to the Collateral Agent and its agents and counsel, andall expenses, liabilities and advances made or incurred by the Collateral Agentin connection with any sale of, collection from or other realization upon allor any part of such Collateral and all amounts for which the Collateral Agentis entitled to indemnification from the Domestic Loan Parties pursuant to theprovisions of any Loan Document, together with interest on each such amount atthe highest rate then in effect under this Agreement from and after the datesuch amount is due, owing or unpaid until paid in full;

(b)           *Second*, to the payment of all other reasonable costs andexpenses of such sale, collection or other realization upon all or any part ofsuch Collateral including compensation to the other Secured Parties and theiragents and counsel and all costs, liabilities and advances made or incurred bythe other Secured Parties in connection therewith, together with interest oneach such amount at the highest rate then in effect under this Agreement fromand after the date such amount is due, owing or unpaid until paid in full;

(c)           *Third*, without duplication of amounts applied pursuant toclauses (a) and (b) of this Section 8.02(A), to the indefeasiblepayment in full in cash, *pro rata*, ofinterest and other amounts constituting US Obligations (other than principaland US Reimbursement Obligations) 

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and any fees, premiums and scheduled periodicpayments due under Hedging Agreements or Treasury Services Agreementsconstituting Secured US Obligations and any interest accrued thereon, in eachcase equally and ratably in accordance with the respective amounts thereof thendue and owing;

(d)           *Fourth*, to the indefeasible payment in full in cash, *pro rata*, of principal amount of the US Obligations and anypremium thereon (including US Reimbursement Obligations) and any breakage,termination or other payments under Hedging Agreements and Treasury Services Agreementsconstituting Secured US Obligations and any interest accrued thereon;

(e)           *Fifth*, without duplication of amounts applied pursuant toclauses (a) and (b) of this Section 8.02(A), to the indefeasiblepayment in full in cash, *pro rata*, ofinterest and other amounts constituting Cayman Obligations (other thanprincipal and Cayman Reimbursement Obligations) and any fees, premiums andscheduled periodic payments due under Hedging Agreements or Treasury ServicesAgreements constituting Secured Cayman Obligations and any interest accruedthereon, in each case equally and ratably in accordance with the respectiveamounts thereof then due and owing;

(f)            *Sixth*, to the indefeasible payment in full in cash, *pro rata*, of principal amount of the Cayman Obligations andany premium thereon (including Cayman Reimbursement Obligations) and anybreakage, termination or other payments under Hedging Agreements and TreasuryServices Agreements constituting Secured Cayman Obligations and any interestaccrued thereon; and

(g)           *Seventh*, the balance, if any, to the person lawfullyentitled thereto (including the applicable Loan Party or its successors orassigns) or as a court of competent jurisdiction may direct.

In the event that any such proceeds are insufficientto pay in full the items described in clauses (a) through (f) of this Section 8.02(A),the Domestic Loan Parties shall remain liable, jointly and severally, for anydeficiency.

**B.           **If such Collateral is that of anyForeign Loan Party, then:

### (a)           *First*, to thepayment of all reasonable costs and expenses, fees, commissions and taxes ofsuch sale, collection or other realization including compensation to theCollateral Agent and its agents and counsel, and all expenses, liabilities andadvances made or incurred by the Collateral Agent in connection with any saleof, collection from or other realization upon all or any part of suchCollateral and all amounts for which the Collateral Agent is entitled toindemnification from the Foreign Loan Parties pursuant to the provisions of anyLoan Document, together with interest on each such amount at the highest ratethen in effect under this Agreement from and after the date such amount is due,owing or unpaid until paid in full;

### (b)           *Second*, to thepayment of all other reasonable costs and expenses of such sale, collection orother realization upon all or any part of such Collateral includingcompensation to the other Secured Parties and their agents and counsel and allcosts, liabilities and advances made or incurred by the other Secured Partiesin connection therewith, together with interest on each such amount at thehighest rate then in effect under this Agreement from and after the date suchamount is due, owing or unpaid until paid in full;

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(c)           *Third*, without duplication of amounts applied pursuant toclauses (a) and (b) of this Section 8.02(B), to the indefeasiblepayment in full in cash, *pro rata*, ofinterest and other amounts constituting Cayman Obligations (other thanprincipal and Cayman Reimbursement Obligations) and any fees, premiums andscheduled periodic payments due under Hedging Agreements or Treasury ServicesAgreements constituting Secured Cayman Obligations and any interest accruedthereon, in each case equally and ratably in accordance with the respectiveamounts thereof then due and owing;

(d)           *Fourth*, to the indefeasible payment in full in cash, *pro rata*, of principal amount of the Cayman Obligations andany premium thereon (including Cayman Reimbursement Obligations) and any breakage,termination or other payments under Hedging Agreements and Treasury ServicesAgreements constituting Secured Cayman Obligations and any interest accruedthereon; and

(e)           *Fifth*, the balance, if any, to the person lawfully entitledthereto (including the applicable Loan Party or its successors or assigns) oras a court of competent jurisdiction may direct.

In the event that any such proceeds are insufficientto pay in full the items described in clauses (a) through (d) of this Section 8.02(B),the Foreign Loan Parties shall remain liable, jointly and severally, for anydeficiency.

# **ARTICLEIX**

# **THEADMINISTRATIVE AGENT AND THE COLLATERAL AGENT**

**SECTION 9.01     Appointment and Authority**.  Each of the Lenders and the Issuing Bankhereby irrevocably appoints UBS AG, Stamford Branch, to act on its behalf asthe Administrative Agent and the Collateral Agent hereunder and under the otherLoan Documents and authorizes such Agents to take such actions on its behalfand to exercise such powers as are delegated to such Agents by the terms hereofor thereof, together with such actions and powers as are reasonably incidentalthereto.  The provisions of this Articleare solely for the benefit of the Administrative Agent, the Collateral Agent,the Lenders and the Issuing Bank, and neither any Borrower nor any other LoanParty shall have rights as a third party beneficiary of any of such provisions.

**SECTION 9.02     Rights as a Lender**.  Each person serving as an Agent hereundershall have the same rights and powers in its capacity as a Lender as any otherLender and may exercise the same as though it were not an Agent and the term “Lender”or “Lenders” shall, unless otherwise expressly indicated or unless the contextotherwise requires, include each person serving as an Agent hereunder in itsindividual capacity.  Such person and itsAffiliates may accept deposits from, lend money to, act as the financialadvisor or in any other advisory capacity for and generally engage in any kindof business with any Borrower or any Subsidiary or other Affiliate thereof asif such person were not an Agent hereunder and without any duty to accounttherefor to the Lenders.

### **SECTION 9.03     ExculpatoryProvisions**.  No Agentshall have any duties or obligations except those expressly set forth hereinand in the other Loan Documents.  Withoutlimiting the generality of the foregoing, no Agent:

#### (i)      shall be subject to any fiduciary or otherimplied duties, regardless of whether a Default has occurred and is continuing;

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#### (ii)     shall have any duty to take any discretionaryaction or exercise any discretionary powers, except discretionary rights andpowers expressly contemplated hereby or by the other Loan Documents that suchAgent is required to exercise as directed in writing by the Required Lenders(or such other number or percentage of the Lenders as shall be expresslyprovided for herein or in the other Loan Documents); *provided*that such Agent shall not be required to take any action that, in its judgmentor the judgment of its counsel, may expose such Agent to liability or that iscontrary to any Loan Document or applicable Requirements of Law; and

#### (iii)    shall, except as expressly set forth hereinand in the other Loan Documents, have any duty to disclose, and shall not beliable for the failure to disclose, any information relating to any Borrower orany of its Affiliates that is communicated to or obtained by the person servingas such Agent or any of its Affiliates in any capacity.

No Agent shall be liable for any action taken or nottaken by it (x) with the consent or at the request of the Required Lenders(or such other number or percentage of the Lenders as shall be necessary, or assuch Agent shall believe in good faith shall be necessary, under thecircumstances as provided in Section 10.02) or (y) in theabsence of its own gross negligence or willful misconduct.  No Agent shall be deemed to have knowledge ofany Default unless and until notice describing such Default is given to suchAgent by a Borrower, a Lender or the Issuing Bank.

No Agent shall be responsible for or have any duty toascertain or inquire into (i) any statement, warranty or representationmade in or in connection with this Agreement or any other Loan Document,(ii) the contents of any certificate, report or other document delivered hereunderor thereunder or in connection herewith or therewith, (iii) theperformance or observance of any of the covenants, agreements or other terms orconditions set forth herein or therein or the occurrence of any Default,(iv) the validity, enforceability, effectiveness or genuineness of thisAgreement, any other Loan Document or any other agreement, instrument ordocument or (v) the satisfaction of any condition set forth in Article IVor elsewhere herein, other than to confirm receipt of items expressly requiredto be delivered to such Agent.  Withoutlimiting the generality of the foregoing, the use of the term “agent” in thisAgreement with reference to the Administrative Agent or the Collateral Agent isnot intended to connote any fiduciary or other implied (or express) obligationsarising under agency doctrine of any applicable law.  Instead, such term us used merely as a matterof market custom and is intended to create or reflect only an administrativerelationship between independent contracting parties.

**SECTION 9.04     Reliance by Agent**.  Each Agent shall be entitled to rely upon,and shall not incur any liability for relying upon, any notice, request,certificate, consent, statement, instrument, document or other writing (includingany electronic message, Internet or intranet website posting or otherdistribution) believed by it to be genuine and to have been signed, sent orotherwise authenticated by the proper person. Each Agent also may rely upon any statement made to it orally or by telephoneand believed by it to have been made by the proper person, and shall not incurany liability for relying thereon.  Indetermining compliance with any condition hereunder to the making of a Loan, orthe issuance of a Letter of Credit, that by its terms must be fulfilled to thesatisfaction of a Lender or the Issuing Bank, the Administrative Agent may presumethat such condition is satisfactory to such Lender or the Issuing Bank unlessthe Administrative Agent shall have received notice to the contrary from suchLender or the Issuing Bank prior to the making of such Loan or the issuance ofsuch Letter of Credit.  Each Agent mayconsult with legal counsel (who may be counsel for a Borrower), independent 

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accountants and other experts selected by it, andshall not be liable for any action taken or not taken by it in accordance withthe advice of any such counsel, accountants or experts.

**SECTION 9.05     Delegation of Duties**.  Each Agent may perform any and all of itsduties and exercise its rights and powers hereunder or under any other LoanDocument by or through, or delegate any and all such rights and powers to, anyone or more sub-agents appointed by such Agent, including a sub-agentwhich is a non-U.S. affiliate of such Agent. Each Agent and any such sub-agent may perform any and all of itsduties and exercise its rights and powers by or through their respectiveRelated Parties.  The exculpatory provisionsof this Article shall apply to any such sub-agent and to the RelatedParties of each Agent and any such sub-agent, and shall apply to theirrespective activities in connection with the syndication of the creditfacilities provided for herein as well as activities as Agent.

**SECTION 9.06     Resignation of Agent**.  Each Agent may at any time give notice of itsresignation to the Lenders, the Issuing Bank and the Borrowers.  Upon receipt of any such notice of resignation,the Required Lenders shall have the right, in consultation with the USBorrower, to appoint a successor, which shall be a bank or a financialinstitution with an office in the United States, or an Affiliate of any suchbank or financial institution with an office in the United States.  If no such successor shall have been soappointed by the Required Lenders and shall have accepted such appointmentwithin 30 days after the retiring Agent gives notice of its resignation,then the retiring Agent may on behalf of the Lenders and the Issuing Bank,appoint a successor Agent meeting the qualifications set forth above *provided* that if the Agent shall notify Borrower and theLenders that no qualifying person has accepted such appointment, then suchresignation shall nonetheless become effective in accordance with such noticeand (1) the retiring Agent shall be discharged from its duties andobligations hereunder and under the other Loan Documents (except that in thecase of any collateral security held by the Collateral Agent on behalf of theLenders or the Issuing Bank under any of the Loan Documents, the retiring CollateralAgent shall continue to hold such collateral security as nominee until suchtime as a successor Collateral Agent is appointed) and (2) all payments,communications and determinations provided to be made by, to or through anAgent shall instead be made by or to each Lender and the Issuing Bank directly,until such time as the Required Lenders appoint a successor Agent as providedfor above in this paragraph.  Upon theacceptance of a successor’s appointment as Agent hereunder, such successorshall succeed to and become vested with all of the rights, powers, privilegesand duties of the retiring (or retired) Agent, and the retiring Agent shall bedischarged from all of its duties and obligations hereunder or under the otherLoan Documents (if not already discharged therefrom as provided above in thisparagraph).  The fees payable by anyBorrower to a successor Agent shall be the same as those payable to itspredecessor unless otherwise agreed between such Borrower and such successor.  After the retiring Agent’s resignationhereunder and under the other Loan Documents, the provisions of this Article IXand Section 10.03 shall continue in effect for the benefit of suchretiring Agent, its sub-agents and their respective Related Parties inrespect of any actions taken or omitted to be taken by any of them while theretiring Agent was acting as Agent.

**SECTION 9.07     Non-Reliance on Agent and OtherLenders**.  Each Lender andthe Issuing Bank acknowledges that it has, independently and without relianceupon any Agent or any other Lender and based on such documents and informationas it has deemed appropriate, made its own credit analysis and decision toenter into this Agreement.  Each Lenderfurther represents and warrants that it has reviewed the ConfidentialInformation Memorandum and each other document made available to it on thePlatform in connection with this Agreement and has acknowledged and acceptedthe terms and conditions applicable to the recipients thereof.  Each Lender and the Issuing Bank alsoacknowledges that it will, independently and without reliance upon any Agent orany other Lender and based on such documents and information as it shall fromtime to time deem appropriate, continue to make its own 

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decisions in taking or not taking action under orbased upon this Agreement, any other Loan Document or any related agreement orany document furnished hereunder or thereunder.

**SECTION 9.08     No Other Duties, etc**.  Anything herein to the contrarynotwithstanding, none of the Bookmanager, the Arrangers, the Syndication Agentor the Co-Documentation Agents****listed on thecover page hereof shall have any powers, duties or responsibilities under thisAgreement or any of the other Loan Documents, except in its capacity, as applicable,as the Administrative Agent, the Collateral Agent, a Lender or the Issuing Bankhereunder.

# **ARTICLE X**

# **MISCELLANEOUS**

**SECTION 10.01  Notices**.

### (a)           Generally.  Except in the case of notices and othercommunications expressly permitted to be given by telephone (and except asprovided in paragraph (b) below), all notices and other communications providedfor herein shall be in writing and shall be delivered by hand or overnight courierservice, mailed by certified or registered mail or sent by telecopier as follows:

#### (i)      if to any Loan Party, to the US Borrowerat:

Sciele Pharma, Inc.Five Concourse ParkwaySuite 1800Atlanta, Georgia 30328Attention: Chief Financial OfficerTelecopier No.:  678-992-1036Email: dborne@sciele.com

#### (ii)     if to the Administrative Agent, theCollateral Agent or Issuing Bank, to it at:

UBS AG, Stamford Branch677 Washington BoulevardStamford, Connecticut  06901Attention:  Christopher GomesTelecopier No.:  (203) 719-3241Email:  christopher.gomes@ubs.com

#### (iii)    if to a Lender, to it at its address (ortelecopier number) set forth in its Administrative Questionnaire; and

#### (iv)    if to the Swingline Lender, to it at:

UBS Loan Finance LLC677 Washington BoulevardStamford, Connecticut  06901Attention:  Christopher GomesTelecopier No.:  (203) 719-3241Email: christopher.gomes@ubs.com

 

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Notices sent by hand or overnight courier service, ormailed by certified or registered mail, shall be deemed to have been given whenreceived; notices sent by telecopier shall be deemed to have been given whensent (except that, if not given during normal business hours for the recipient,shall be deemed to have been given at the opening of business on the nextbusiness day for the recipient).  Noticesdelivered through electronic communications to the extent provided in paragraph (b)below, shall be effective as provided in said paragraph (b).

### (b)           ElectronicCommunications.  Notices and othercommunications to the Lenders and the Issuing Bank hereunder may (subject to Section10.01(d)) be delivered or furnished by electronic communication (includinge-mail and Internet or intranet websites) pursuant to procedures approvedby the Administrative Agent; *provided* thatthe foregoing shall not apply to notices to any Lender or the Issuing Bankpursuant to Article II if such Lender or the Issuing Bank, asapplicable, has notified the Administrative Agent that it is incapable ofreceiving notices under such Article by electronic communication.  The Administrative Agent, the CollateralAgent or any Borrower may, in its discretion, agree to accept notices and othercommunications to it hereunder by electronic communications pursuant toprocedures approved by it (including as set forth in Section 10.01(d)); *provided* that approval of such procedures may be limited toparticular notices or communications.

Unless the Administrative Agent otherwise prescribes,(i) notices and other communications sent to an e-mail address shall bedeemed received upon the sender’s receipt of an acknowledgement from theintended recipient (such as by the “return receipt requested” function, asavailable, return e-mail or other written acknowledgement); *provided* that if such notice or other communication is notsent during the normal business hours of the recipient, such notice orcommunication shall be deemed to have been sent at the opening of business onthe next business day for the recipient, and (ii) notices or communicationsposted to an Internet or intranet website shall be deemed received upon thedeemed receipt by the intended recipient at its e-mail address as described inthe foregoing clause (i) of notification that such notice or communicationis available and identifying the website address therefor.

### (c)           Changeof Address, etc.  Any party heretomay change its address or telecopier number for notices and othercommunications hereunder by notice to the other parties hereto.

### (d)           Posting.   Each Loan Party hereby agrees that it willprovide to the Administrative Agent all information, documents and othermaterials that it is obligated to furnish to the Administrative Agent pursuantto this Agreement and any other Loan Document, including all notices, requests,financial statements, financial and other reports, certificates and otherinformation materials, but excluding any such communication that(i) relates to a request for a new, or a conversion of an existing, Borrowingor other extension of credit (including any election of an interest rate orinterest period relating thereto), (ii) relates to the payment of anyprincipal or other amount due under this Agreement prior to the scheduled datetherefor, (iii) provides notice of any Default under this Agreement or(iv) is required to be delivered to satisfy any condition precedent to theeffectiveness of this Agreement and/or any borrowing or other extension ofcredit hereunder (all such non-excluded communications, collectively, the “**Communications**”), by transmitting theCommunications in an electronic/soft medium in a format reasonably acceptableto the Administrative Agent at christopher.gomes@ubs.com or at such othere-mail address(es) provided to the US Borrower from time to time or in suchother form, including hard copy delivery thereof, as the Administrative Agentshall require.  In addition, each LoanParty agrees to continue to provide the Communications to the AdministrativeAgent in the manner specified in this Agreement or any other Loan Document orin such other form, including hard copy delivery thereof, as the AdministrativeAgent shall require.  Nothing in this Section10.01 shall prejudice the right of the 

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### Agents, any Lender or any Loan Party to give any notice or othercommunication pursuant to this Agreement or any other Loan Document in anyother manner specified in this Agreement or any other Loan Document or as anysuch Agent shall require.

To the extent consented to by the Administrative Agentin writing from time to time, Administrative Agent agrees that receipt of theCommunications by the Administrative Agent at its e-mail address(es) set forthabove shall constitute effective delivery of the Communications to theAdministrative Agent for purposes of the Loan Documents; *provided*that the Borrowers shall also deliver to the Administrative Agent an executedoriginal of each Compliance Certificate required to be delivered hereunder.

Each Loan Party further agrees that AdministrativeAgent may make the Communications available to the Lenders by posting theCommunications on Intralinks or a substantially similar electronic transmissionsystem (the “**Platform**”).  The Platform is provided “as is” and “asavailable.”  The Agents do not warrantthe accuracy or completeness of the Communications, or the adequacy of the Platformand expressly disclaim liability for errors or omissions in the communications.  No warranty of any kind, express, implied orstatutory, including, without limitation, any warranty of merchantability,fitness for a particular purpose, non-infringement of third party rights orfreedom from viruses or other code defects, is made by any Agent in connectionwith the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Partieshave any liability to the Loan Parties, any Lender or any other person fordamages of any kind, including direct or indirect, special, incidental orconsequential damages, losses or expenses (whether in tort, contract or otherwise)arising out of any Loan Party’s or the Administrative Agent’s transmission ofcommunications through the Internet, except to the extent the liability of suchperson is found in a final non-appealable judgment by a court of competentjurisdiction to have resulted from such person’s gross negligence or willfulmisconduct.

**SECTION10.02  Waivers; Amendment**.

### (a)           Generally.  No failure or delay by any Agent, the IssuingBank or any Lender in exercising any right or power hereunder or under anyother Loan Document shall operate as a waiver thereof, nor shall any single orpartial exercise of any such right or power, or any abandonment or discontinuanceof steps to enforce such a right or power, preclude any other or furtherexercise thereof or the exercise of any other right or power.  The rights and remedies of each Agent, theIssuing Bank and the Lenders hereunder and under the other Loan Documents arecumulative and are not exclusive of any rights or remedies that they wouldotherwise have.  No waiver of anyprovision of any Loan Document or consent to any departure by any Loan Partytherefrom shall in any event be effective unless the same shall be permitted bythis Section 10.02, and then such waiver or consent shall be effectiveonly in the specific instance and for the purpose for which given.  Without limiting the generality of theforegoing, the making of a Loan or issuance of a Letter of Credit shall not beconstrued as a waiver of any Default, regardless of whether any Agent, anyLender or the Issuing Bank may have had notice or knowledge of such Default atthe time.  No notice or demand on anyBorrower in any case shall entitle such Borrower to any other or further noticeor demand in similar or other circumstances.

### (b)           RequiredConsents.  Subject to Sections10.02(c) and (d), neither this Agreement nor any other Loan Documentnor any provision hereof or thereof may be waived, amended, supplemented ormodified except, in the case of this Agreement, pursuant to an agreement oragreements in writing entered into by the Borrowers and the Required Lendersor, in the case of any other Loan Document, pursuant to an agreement oragreements in writing entered into by the Administrative Agent, 

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### the Collateral Agent (in the case of any Security Document) and theLoan Party or Loan Parties that are party thereto, in each case with thewritten consent of the Required Lenders; *provided* thatno such agreement shall be effective if the effect thereof would:

#### (i)      increase the Commitment of any Lenderwithout the written consent of such Lender (it being understood that noamendment, modification, termination, waiver or consent with respect to anycondition precedent, covenant or Default shall constitute an increase in theCommitment of any Lender);

#### (ii)     reduce the principal amount of any Loan orLC Disbursement or reduce the rate of interest thereon (other than interestpursuant to Section 2.06(c)), or reduce any Fees payable hereunder, orchange the form or currency of payment of any Obligation, without the writtenconsent of each Lender directly affected thereby (it being understood that anyamendment or modification to the financial definitions in this Agreement shallnot constitute a reduction in the rate of interest for purposes of thisclause (ii));

#### (iii)    (A) change the scheduled final maturity ofany Loan, (B) postpone the date for payment of any Reimbursement Obligation orany interest or fees payable hereunder, (C) change the amount of, waive orexcuse any such payment (other than waiver of any increase in the interest ratepursuant to Section 2.06(c)), or (D) postpone the scheduled date ofexpiration of any Commitment or any Letter of Credit beyond the Final MaturityDate, in any case, without the written consent of each Lender directly affectedthereby;

#### (iv)    increase the maximum duration of InterestPeriods hereunder, without the written consent of each Lender directly affectedthereby;

#### (v)     permit the assignment or delegation by anyBorrower of any of its rights or obligations under any Loan Document, withoutthe written consent of each Lender;

#### (vi)    release all or substantially all of theGuarantors from their Guarantee (except as expressly provided in Article VII),or limit their liability in respect of such Guarantee, without the writtenconsent of each Lender;

#### (vii)   release all or a substantial portion of theCollateral from the Liens of the Security Documents or alter the relativepriorities of the Secured Obligations entitled to the Liens of the SecurityDocuments, in each case without the written consent of each Lender (it beingunderstood that additional Classes of Loans pursuant to Section 2.19 orconsented to by the Required Lenders may be equally and ratably secured by theCollateral with then existing Secured Obligations under the Security Documents);

#### (viii)  change Section 2.14(b), (c)or (d) in a manner that would alter the *pro rata*sharing of payments or setoffs required thereby or any other provision in amanner that would alter the *pro rata*allocation among the Lenders of Loan disbursements, including, withoutlimitation, the requirements of Sections 2.02(a), 2.17(A)(d), 2.17(B)(d),2.18(A)(d), 2.18(B)(d) and 8.02, without the writtenconsent of each Lender directly affected thereby;

#### (ix)    change any provision of this Section 10.02(b)or Section 10.02(c) or (d), without the written consent of eachLender directly affected thereby (except for additional restrictions on 

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#### amendments orwaivers for the benefit of Lenders of additional Classes of Loans pursuant to Section2.19 or****consented to by theRequired Lenders);

#### (x)     change the percentage set forth in thedefinition of “Required Lenders,” “Required Class Lenders,” “Required RevolvingLenders” or any other provision of any Loan Document (including this Section)specifying the number or percentage of Lenders (or Lenders of any Class)required to waive, amend or modify any rights thereunder or make anydetermination or grant any consent thereunder, without the written consent ofeach Lender (or each Lender of such Class, as the case may be), other than toincrease such percentage or number or to give any additional Lender or group ofLenders such right to waive, amend or modify or make any such determination orgrant any such consent;

#### (xi)    change the application of prepayments asamong or between Classes under Section 2.10(c), without the writtenconsent of the Required Class Lenders of each Class that is being allocated alesser prepayment as a result thereof (it being understood that the RequiredLenders may waive, in whole or in part, any prepayment so long as the application,as between Classes, of any portion of such prepayment that is still required tobe made is not changed;

#### (xii)   change or waive any provision of Article Xas the same applies to any Agent, or any other provision hereof as the sameapplies to the rights or obligations of any Agent, in each case without thewritten consent of such Agent;

#### (xiii)  change or waive any obligation of the Lendersrelating to the issuance of or purchase of participations in Letters of Credit,without the written consent of the Administrative Agent and the Issuing Bank;

#### (xiv)  change or waive any provision hereof relatingto Swingline Loans (including the definition of “Swingline Commitment”),without the written consent of the Swingline Lender; or

#### (xv)   expressly change or waive any conditionprecedent in Section 4.02 to any Revolving Borrowing without thewritten consent of the Required Revolving Lenders.

### (c)           Collateral.  Without the consent of any other person, theapplicable Loan Party or Parties and the Administrative Agent and/or CollateralAgent may (in its or their respective sole discretion, or shall, to the extentrequired by any Loan Document) enter into any amendment or waiver of any LoanDocument, or enter into any new agreement or instrument, to effect the granting,perfection, protection, expansion or enhancement of any security interest inany Collateral or additional property to become Collateral for the benefit ofthe Secured Parties, or as required by local law to give effect to, or protectany security interest for the benefit of the Secured Parties, in any propertyor so that the security interests therein comply with applicable Requirementsof Law.

### (d)           DissentingLenders.  If, in connection with anyproposed change, waiver, discharge or termination of the provisions of thisAgreement as contemplated by Section 10.02(b), the consent of theRequired Lenders is obtained but the consent of one or more of such otherLenders whose consent is required is not obtained, then the US Borrower shallhave the right to replace all, but not less than all, of such non-consentingLender or Lenders (so long as all non-consenting Lenders are so replaced) withone or more persons pursuant to Section 2.16 so long as at the timeof such replacement each such new Lender consents to the proposed change,waiver, discharge or termination.  EachLender agrees that, if the US Borrower elects to replace such Lender inaccordance with this Section, it shall 

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### promptly execute and deliver to the Administrative Agent an Assignmentand Assumption to evidence such sale and purchase and shall deliver to theAdministrative Agent any Note (if Notes have been issued in respect of suchLender’s Loans) subject to such Assignment and Assumption; *provided* that the failure of any suchnon-consenting Lender to execute an Assignment and Assumption shall not rendersuch sale and purchase (and the corresponding assignment) invalid and suchassignment shall be recorded in the Register.

**SECTION10.03   Expenses; Indemnity; Damage Waiver**.

### (a)           Costsand Expenses.  Each Borrower shallpay (i) all reasonable out-of-pocket expenses incurred by theAdministrative Agent, the Collateral Agent, the Syndication Agent and theirrespective Affiliates (including the reasonable fees, charges and disbursementsof counsel for the Administrative Agent and/or the Collateral Agent) inconnection with the syndication of the credit facilities provided for herein(including the obtaining and maintaining of CUSIP numbers for the Loans), thepreparation, negotiation, execution, delivery and administration of thisAgreement and the other Loan Documents or any amendment, amendment andrestatement, modification or waiver of the provisions hereof or thereof(whether or not the transactions contemplated hereby or thereby shall beconsummated), including in connection with post-closing searches to confirmthat security filings and recordations have been properly made, (ii) allreasonable out-of-pocket expenses incurred by the Issuing Bank inconnection with the issuance, amendment, renewal or extension of any Letter ofCredit or any demand for payment thereunder, (iii) all out-of-pocketexpenses incurred by the Administrative Agent, the Collateral Agent, any Lenderor the Issuing Bank (including the fees, charges and disbursements of anycounsel for the Administrative Agent, the Collateral Agent, any Lender or theIssuing Bank), in connection with the enforcement or protection of its rights(A) in connection with this Agreement and the other Loan Documents,including its rights under this Section 10.03, or (B) in connectionwith the Loans made or Letters of Credit issued hereunder, including all suchout-of-pocket expenses incurred during any workout, restructuringor negotiations in respect of such Loans or Letters of Credit and (iv) alldocumentary and similar taxes and charges in respect of the Loan Documents.

### (b)           Indemnificationby Borrowers.

#### (i)      The US Borrower shall indemnify eachIndemnitee against, and hold each Indemnitee harmless from, any and all losses,claims, damages, liabilities and related expenses (including the fees, chargesand disbursements of any counsel for any Indemnitee) incurred by any Indemniteeor asserted against any Indemnitee by any third party or by any Borrower or anyother Loan Party arising out of, in connection with, or as a result of(i) the execution or delivery of this Agreement, any other Loan Document,or any amendment, amendment and restatement, modification or waiver of theprovisions hereof or thereof, or any agreement or instrument contemplatedhereby or thereby, the performance by the parties hereto of their respectiveobligations hereunder or thereunder or the consummation of the transactionscontemplated hereby or thereby, (ii) any Loan or Letter of Credit or theuse or proposed use of the proceeds therefrom (including any refusal by theIssuing Bank to honor a demand for payment under a Letter of Credit if thedocuments presented in connection with such demand do not strictly comply withthe terms of such Letter of Credit), (iii) any actual or alleged presenceor Release or threatened Release of Hazardous Materials on, at, under or fromany property owned, leased or operated by any Company at any time, or anyEnvironmental Claim related in any way to any Company, or (iv) any actualor prospective claim, litigation, investigation or proceeding relating to anyof the foregoing, whether based on contract, tort or any other theory, whetherbrought by a third party or by any Borrower or any other Loan Party, andregardless of whether any Indemnitee is a party 

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#### thereto; *provided* that such indemnity shall not, as to anyIndemnitee, be available to the extent that such losses, claims, damages,liabilities or related expenses (x) are determined by a court of competentjurisdiction by final and nonappealable judgment to have resulted from thegross negligence or willful misconduct of such Indemnitee or (y) resultfrom a claim brought by any Borrower or any other Loan Party against anIndemnitee for breach in bad faith of such Indemnitee’s obligations hereunderor under any other Loan Document, if such Borrower or such Loan Party hasobtained a final and nonappealable judgment in its favor on such claim asdetermined by a court of competent jurisdiction.

#### (ii)     The Cayman Borrower shall indemnify eachIndemnitee against, and hold each Indemnitee harmless from, any and all losses,claims, damages, liabilities and related expenses (including the fees, chargesand disbursements of any counsel for any Indemnitee) incurred by any Indemniteeor asserted against any Indemnitee by any third party or by the Cayman Borroweror any other Foreign Loan Party arising out of, in connection with, or as aresult of (i) the Cayman Borrower’s execution or delivery of thisAgreement, any other Loan Document, or any amendment, amendment andrestatement, modification or waiver of the provisions hereof or thereof, or anyagreement or instrument contemplated hereby or thereby, the performance by theCayman Borrower of the obligations hereunder or thereunder or the consummationof the transactions contemplated hereby or thereby, (ii) any CaymanRevolving Loan or Cayman Letter of Credit or the use or proposed use of theproceeds therefrom (including any refusal by the Issuing Bank to honor a demandfor payment under a Cayman Letter of Credit if the documents presented inconnection with such demand do not strictly comply with the terms of suchCayman Letter of Credit), (iii) any actual or alleged presence or Releaseor threatened Release of Hazardous Materials on, at, under or from any propertyowned, leased or operated by the Cayman Borrower or any Foreign Subsidiary atany time, or any Environmental Claim related in any way to the Cayman Borroweror any Foreign Subsidiary, or (iv) any actual or prospective claim,litigation, investigation or proceeding relating to any of the foregoing,whether based on contract, tort or any other theory, whether brought by a thirdparty or by the Cayman Borrower or any other Foreign Loan Party, and regardlessof whether any Indemnitee is a party thereto; *provided*that such indemnity shall not, as to any Indemnitee, be available to the extentthat such losses, claims, damages, liabilities or related expenses (x) aredetermined by a court of competent jurisdiction by final and nonappealablejudgment to have resulted from the gross negligence or willful misconduct ofsuch Indemnitee or (y) result from a claim brought by the Cayman Borroweror any other Foreign Loan Party against an Indemnitee for breach in bad faithof such Indemnitee’s obligations hereunder or under any other Loan Document, ifthe Cayman Borrower or such Foreign Loan Party has obtained a final andnonappealable judgment in its favor on such claim as determined by a court ofcompetent jurisdiction.

### (c)           Reimbursementby Lenders.  To the extent that anyBorrower for any reason fails to indefeasibly pay any amount required underparagraph (a) or (b) of this Section 10.03 to be paid by it tothe Administrative Agent (or any sub-agent thereof), the Collateral Agent, theIssuing Bank, the Swingline Lender or any Related Party of any of theforegoing, each Lender severally agrees to pay to the Administrative Agent (orany such sub-agent), the Collateral Agent (or any sub-agent thereof), theIssuing Bank, the Swingline Lender or such Related Party, as the case may be,such Lender’s *pro**rata*share (determined as of the time that the applicable unreimbursed expense orindemnity payment is sought) of such unpaid amount; *provided*that the unreimbursed expense or indemnified loss, claim, damage, liability orrelated expense, as the case may be, was incurred by or asserted against theAdministrative Agent (or any such sub-agent), the Collateral Agent (or anysub-agent thereof), the Swingline Lender or the Issuing Bank in its capacity assuch, or against any Related Party of any of the foregoing acting for the

 

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### Administrative Agent (or any such sub-agent), the Collateral Agent (orany sub-agent thereof), the Swingline Lender or Issuing Bank in connection withsuch capacity.  The obligations of theLenders under this paragraph (c) are subject to the provisions of Section 2.14.  For purposes hereof, a Lender’s “*pro**rata* share”shall be determined based upon its share of the sum of the total RevolvingExposure and unused Commitments at the time.

### (d)           Waiverof Consequential Damages, Etc.  Tothe fullest extent permitted by applicable Requirements of Law, no Loan Partyshall assert, and each Loan Party hereby waives, any claim against any Indemnitee,on any theory of liability, for special, indirect, consequential or punitivedamages (as opposed to direct or actual damages) arising out of, in connectionwith, or as a result of, this Agreement, any other Loan Document or anyagreement or instrument contemplated hereby, the transactions contemplatedhereby or thereby, any Loan or Letter of Credit or the use of the proceedsthereof.  No Indemnitee referred to inparagraph (b) above shall be liable for any damages arising from the use by unintendedrecipients of any information or other materials distributed by it throughtelecommunications, electronic or other information transmission systems inconnection with this Agreement or the other Loan Documents or the transactionscontemplated hereby or thereby.

### (e)           Payments.  All amounts due under this Section shall bepayable not later than 3 Business Days after demand therefor.

**SECTION10.04  Successors and Assigns.**

### (a)           Successorsand Assigns Generally.  Theprovisions of this Agreement shall be binding upon and inure to the benefit ofthe parties hereto and their respective successors and assigns permittedhereby, except that no Borrower may assign or otherwise transfer any of itsrights or obligations hereunder without the prior written consent of theAdministrative Agent, the Collateral Agent, the Issuing Lender, the SwinglineLender and each Lender and no Lender may assign or otherwise transfer any ofits rights or obligations hereunder except (i) to an Eligible Assignee inaccordance with the provisions of paragraph (b) of this Section 10.04,(ii) by way of participation in accordance with the provisions of paragraph (d)of this Section 10.04 or (iii) by way of pledge or assignment of asecurity interest subject to the restrictions of paragraph (f) of thisSection (and any other attempted assignment or transfer by a Borrower or anyLender shall be null and void).  Nothingin this Agreement, expressed or implied, shall be construed to confer upon anyperson (other than the parties hereto, their respective successors and assignspermitted hereby, Participants to the extent provided in paragraph (d) ofthis Section and, to the extent expressly contemplated hereby, the otherIndemnitees) any legal or equitable right, remedy or claim under or by reasonof this Agreement.

### (b)           Assignmentsby Lenders.  Any Lender may at anytime assign to one or more Eligible Assignees all or a portion of its rightsand obligations under this Agreement (including all or a portion of itsCommitment and the Loans at the time owing to it); *provided*that

#### (i)      except in the case of any assignment madein connection with the primary syndication of the Commitment and Loans by theArrangers or an assignment of the entire remaining amount of the assigningLender’s Commitment and the Loans at the time owing to it or in the case of anassignment to a Lender or an Affiliate of a Lender or an Approved Fund withrespect to a Lender, the aggregate amount of the Commitment (which for thispurpose includes Loans outstanding thereunder) or, if the applicable Commitmentis not then in effect, the principal outstanding balance of the Loans of theassigning Lender subject to each such assignment (determined as of the date theAssignment and Assumption with respect to such assignment is 

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#### delivered tothe Administrative Agent or, if “Trade Date” is specified in the Assignment andAssumption, as of the Trade Date) shall not be less than $1.0 million, in thecase of any assignment in respect of Revolving Loans and/or RevolvingCommitments, unless each of the Administrative Agent and, so long as no Defaulthas occurred and is continuing, the US Borrower otherwise consent (each suchconsent not to be unreasonably withheld or delayed);

#### (ii)     each partial assignment shall be made as anassignment of a proportionate part of all the assigning Lender’s rights andobligations under this Agreement with respect to the Loan or the Commitmentassigned, except that this clause (ii) shall not prohibit any Lender fromassigning all or a portion of its rights and obligations among separatetranches on a non-*pro rata* basis; and

#### (iii)    the parties to each assignment shall executeand deliver to the Administrative Agent an Assignment and Assumption, togetherwith a processing and recordation fee of $3,500, and the Eligible Assignee, ifit shall not be a Lender, shall deliver to the Administrative Agent an AdministrativeQuestionnaire.

Subject to acceptance and recording thereof by theAdministrative Agent pursuant to paragraph (c) of this Section 10.04,from and after the effective date specified in each Assignment and Assumption,the Eligible Assignee thereunder shall be a party to this Agreement and, to theextent of the interest assigned by such Assignment and Assumption, have therights and obligations of a Lender under this Agreement, and the assigningLender thereunder shall, to the extent of the interest assigned by suchAssignment and Assumption, be released from its obligations under thisAgreement (and, in the case of an Assignment and Assumption covering all of theassigning Lender’s rights and obligations under this Agreement, such Lendershall cease to be a party hereto) but shall continue to be entitled to thebenefits of Sections 2.12, 2.13, 2.15 and 10.03with respect to facts and circumstances occurring prior to the effective dateof such assignment.  Any assignment ortransfer by a Lender of rights or obligations under this Agreement that does notcomply with this paragraph shall be treated for purposes of this Agreement as asale by such Lender of a participation in such rights and obligations in accordancewith paragraph (d) of this Section 10.04.

### (c)           Register.  The Administrative Agent, acting solely forthis purpose as an agent of the Borrowers, shall maintain at one of its officesin Stamford, Connecticut a copy of each Assignment and Assumption delivered toit and a register for the recordation of the names and addresses of the Lenders,and the Commitments of, and principal amounts of the Loans and LC Disbursementsowing to, each Lender pursuant to the terms hereof from time to time (the “**Register**”). The entries in the Register shall be conclusive, and Borrowers, theAdministrative Agent, the Issuing Bank and the Lenders may treat each personwhose name is recorded in the Register pursuant to the terms hereof as a Lenderhereunder for all purposes of this Agreement, notwithstanding notice to thecontrary.  The Register shall beavailable for inspection by Borrowers, the Issuing Bank, the Collateral Agent,the Swingline Lender and any Lender (with respect to its own interest only), atany reasonable time and from time to time upon reasonable prior notice.

### (d)           Participations.  Any Lender may at any time, without theconsent of, or notice to, any Borrower, the Administrative Agent, the IssuingBank or the Swingline Lender sell participations to any person (other than anatural person or a Borrower or any of such Borrower’s Affiliates or Subsidiaries)(each, a “**Participant**”) in all ora portion of such Lender’s rights and/or obligations under this Agreement(including all or a portion of its Commitment and/or the Loans owing to it); *provided* that (i) such Lender’s obligations under thisAgreement shall remain unchanged, (ii) such Lender shall remain 

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### solely responsible to the other parties hereto for the performance ofsuch obligations, (iii) Borrowers, the Administrative Agent and theLenders and Issuing Bank shall continue to deal solely and directly with suchLender in connection with such Lender’s rights and obligations under thisAgreement and (iv) no additional obligations of any Borrower are created as aresult of such participation.

Any agreement or instrument pursuant to which a Lendersells such a participation shall provide that such Lender shall retain the soleright to enforce the Loan Documents and to approve any amendment, modificationor waiver of any  provision of the LoanDocuments; *provided* that such agreement orinstrument may provide that such Lender will not, without the consent of the Participant,agree to any amendment, modification or waiver described in clause (i), (ii) or(iii) of the first proviso to Section 10.02(b) that affects suchParticipant.  Subject toparagraph (e) of this Section, each Borrower agrees that each Participantshall be entitled to the benefits of Sections 2.12, 2.13 and 2.15(subject to the requirements of those Sections) to the same extent as if itwere a Lender and had acquired its interest by assignment pursuant toparagraph (b) of this Section.  Tothe extent permitted by law, each Participant also shall be entitled to thebenefits of Section 10.08 as though it were a Lender, provided suchParticipant agrees to be subject to Section 2.14 as though it were aLender.

### (e)           Limitationson Participant Rights.  A Participantshall not be entitled to receive any greater payment under Sections 2.12,2.13 and 2.15 than the applicable Lender would have been entitledto receive with respect to the participation sold to such Participant, unlessthe sale of the participation to such Participant is made with Borrower’s priorwritten consent.

### (f)            CertainPledges.  Any Lender may at any timepledge or assign a security interest in all or any portion of its rights underthis Agreement to secure obligations of such Lender, including any pledge orassignment to secure obligations to a Federal Reserve Bank; *provided* that no such pledge or assignment shall releasesuch Lender from any of its obligations hereunder or substitute any suchpledgee or assignee for such Lender as a party hereto.  In the case of any Lender that is a fund thatinvests in bank loans, such Lender may, without the consent of any Borrower orthe Administrative Agent, collaterally assign or pledge all or any portion ofits rights under this Agreement, including the Loans and Notes or any otherinstrument evidencing its rights as a Lender under this Agreement, to anyholder of, trustee for, or any other representative of holders of, obligationsowed or securities issued, by such fund, as security for such obligations orsecurities.

### (g)           ElectronicExecution of Assignments.  The words “execution,”“signed,” “signature,” and words of like import in any Assignment andAssumption shall be deemed to include electronic signatures or the keeping ofrecords in electronic form, each of which shall be of the same legal effect,validity or enforceability as a manually executed signature or the use of apaper-based recordkeeping system, as the case may be, to the extent and asprovided for in any applicable Requirement of Law, including the FederalElectronic Signatures in Global and National Commerce Act, the New York StateElectronic Signatures and Records Act, or any other similar state laws based onthe Uniform Electronic Transactions Act.

**SECTION 10.05  Survival of Agreement**.  All covenants, agreements, representationsand warranties made by the Loan Parties in the Loan Documents and in thecertificates or other instruments delivered in connection with or pursuant tothis Agreement or any other Loan Document shall be considered to have beenrelied upon by the other parties hereto and shall survive the execution and deliveryof the Loan Documents and the making of any Loans and issuance of any Lettersof Credit, regardless of any investigation made by any such other party or onits behalf and notwithstanding that the Agents, the Issuing Bank or any Lendermay have had notice or knowledge of 

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any Default or incorrect representation or warranty atthe time any credit is extended hereunder, and shall continue in full force andeffect as long as the principal of or any accrued interest on any Loan or anyfee or any other amount payable under this Agreement is outstanding and unpaidor any Letter of Credit is outstanding and so long as the Commitments have notexpired or terminated.  The provisions ofSections 2.12, 2.14, 2.15 and Article X(other than Section 10.12) shall survive and remain in full force andeffect regardless of the consummation of the transactions contemplated hereby,the repayment of the Loans, the payment of the Reimbursement Obligations, theexpiration or termination of the Letters of Credit and the Commitments or thetermination of this Agreement or any provision hereof.

**SECTION10.06  Counterparts; Integration;Effectiveness**.  ThisAgreement may be executed in counterparts (and by different parties hereto indifferent counterparts), each of which shall constitute an original, but all ofwhich when taken together shall constitute a single contract.  This Agreement and the other Loan Documents(including the Engagement Letter) constitute the entire contract among theparties relating to the subject matter hereof and supersede any and allprevious agreements and understandings, oral or written, relating to the subjectmatter hereof.  Except as provided in Section4.01, this Agreement shall become effective when it shall have been executedby the Administrative Agent and when the Administrative Agent shall havereceived counterparts hereof that, when taken together, bear the signatures ofeach of the other parties hereto. Delivery of an executed counterpart of a signature page of thisAgreement by telecopier shall be effective as delivery of a manually executedcounterpart of this Agreement.

**SECTION 10.07  Severability**.  Any provision of this Agreement held to beinvalid, illegal or unenforceable in any jurisdiction shall, as to suchjurisdiction, be ineffective to the extent of such invalidity, illegality orunenforceability without affecting the validity, legality and enforceability ofthe remaining provisions hereof; and the invalidity of a particular provisionin a particular jurisdiction shall not invalidate such provision in any otherjurisdiction.

**SECTION 10.08  Right of Setoff**.  If an Event of Default shall have occurredand be continuing, each Lender, the Issuing Bank, and each of their respectiveAffiliates is hereby authorized at any time and from time to time, to thefullest extent permitted by applicable Requirements of Law, to set off andapply any and all deposits (general or special, time or demand, provisional orfinal, in whatever currency) at any time held and other obligations (inwhatever currency) at any time owing by such Lender, the Issuing Bank or anysuch Affiliate to or for the credit or the account of any Borrower or any otherLoan Party against any and all of the obligations of such Borrower or such LoanParty now or hereafter existing under this Agreement or any other Loan Documentto such Lender or the Issuing Bank, irrespective of whether or not such Lenderor the Issuing Bank shall have made any demand under this Agreement or anyother Loan Document and although such obligations of such Borrower or such LoanParty may be contingent or unmatured or are owed to a branch or office of suchLender or the Issuing Bank different from the branch or office holding suchdeposit or obligated on such indebtedness. The rights of each Lender, the Issuing Bank and their respectiveAffiliates under this Section are in addition to other rights and remedies (includingother rights of setoff) that such Lender, the Issuing Bank or their respectiveAffiliates may have.  Each Lender and theIssuing Bank agrees to notify the US Borrower and the Administrative Agentpromptly after any such setoff and application; *provided*that the failure to give such notice shall not affect the validity of suchsetoff and application.

** **

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**SECTION10.09  Governing Law;Jurisdiction; Consent to Service of Process**.

### (a)           GoverningLaw.  This Agreement shall beconstrued in accordance with and governed by the law of the State of New York,without regard to conflicts of law principles that would require theapplication of the laws of another jurisdiction.

### (b)           Submissionto Jurisdiction.  Each Loan Partyhereby irrevocably and unconditionally submits, for itself and its property, tothe nonexclusive jurisdiction of the Supreme Court of the State of New Yorksitting in New York County and of the United States District Court of theSouthern District of New York, and any appellate court from any thereof, in anyaction or proceeding arising out of or relating to any Loan Document, or forrecognition or enforcement of any judgment, and each of the parties heretohereby irrevocably and unconditionally agrees that all claims in respect of anysuch action or proceeding may be heard and determined in such New York Statecourt or, to the fullest extent permitted by applicable law, in such Federalcourt.  Each of the parties hereto agreesthat a final judgment in any such action or proceeding shall be conclusive andmay be enforced in other jurisdictions by suit on the judgment or in any othermanner provided by law.  Nothing in thisAgreement or any other Loan Document shall affect any right that theAdministrative Agent, the Issuing Bank or any Lender may otherwise have tobring any action or proceeding relating to this Agreement or any other LoanDocument against any Loan Party or its properties in the courts of any jurisdiction.

### (c)           Waiverof Venue.  Each Loan Party herebyirrevocably and unconditionally waives, to the fullest extent permitted byapplicable Requirements of Law, any objection which it may now or hereafterhave to the laying of venue of any suit, action or proceeding arising out of orrelating to this Agreement or any other Loan Document in any court referred toin Section 10.09(b).  Each of theparties hereto hereby irrevocably waives, to the fullest extent permitted byapplicable Requirements of Law, the defense of an inconvenient forum to themaintenance of such action or proceeding in any such court.

### (d)           Serviceof Process.  Each party heretoirrevocably consents to service of process in any action or proceeding arisingout of or relating to any Loan Document, in the manner provided for notices(other than telecopier) in Section 10.01.  Nothing in this Agreement or any other LoanDocument will affect the right of any party hereto to serve process in anyother manner permitted by applicable Requirements of Law.

**SECTION 10.10  Waiver of Jury Trial**.  Each Loan Party hereby waives, to the fullestextent permitted by applicable Requirements of Law, any right it may have to atrial by jury in any legal proceeding directly or indirectly arising out of orrelating to this Agreement, any other Loan Document or the transactionscontemplated hereby (whether based on contract, tort or any other theory).  Each party hereto (a) certifies that norepresentative, agent or attorney of any other party has represented, expresslyor otherwise, that such other party would not, in the event of litigation, seekto enforce the foregoing waiver and (b) acknowledges that it and the otherparties hereto have been induced to enter into this Agreement by, among otherthings, the mutual waivers and certifications in this Section.

**SECTION 10.11  Headings**.  Article and Section headings and the Table ofContents used herein are for convenience of reference only, are not part ofthis Agreement and shall not affect the construction of, or be taken into considerationin interpreting, this Agreement.

**SECTION 10.12  Treatment of Certain Information;Confidentiality**.  Each ofthe Administrative Agent, the Lenders and the Issuing Bank agrees to maintainthe confidentiality of the 

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Information (as defined below), except thatInformation may be disclosed (a) to its Affiliates and to its and itsAffiliates’ respective partners, directors, officers, employees, agents, advisorsand other representatives (it being understood that the persons to whom suchdisclosure is made will be informed of the confidential nature of suchInformation and instructed to keep such Information confidential), (b) tothe extent requested by any Governmental Authority or regulatory authority (includingany self-regulatory authority, such as the National Association of InsuranceCommissioners), (c) to the extent required by applicable Requirements ofLaw or by any subpoena or similar legal process, (d) to any other partyhereto, (e) in connection with the exercise of any remedies hereunder orunder any other Loan Document or any action or proceeding relating to this Agreementor any other Loan Document or the enforcement of rights hereunder orthereunder, (f) subject to an agreement containing provisions substantiallythe same as those of this Section 10.12, to (i) any assignee of orParticipant in, or any prospective assignee of or Participant in, any of itsrights or obligations under this Agreement, (ii) any actual or prospectivecounterparty (or its advisors) to any swap or derivative transaction relatingto any Borrower and its obligations or (iii) any rating agency for the purposeof obtaining a credit rating applicable to any Lender, (g) with theconsent of the US Borrower or (h) to the extent such Information(x) becomes publicly available other than as a result of a breach of thisSection by such Person or (y) becomes available to the AdministrativeAgent, any Lender, the Issuing Bank or any of their respective Affiliates on anonconfidential basis from a source other than the Borrowers.  For purposes of this Section, “**Information**” means all information received from a Borroweror any of its Subsidiaries relating to a Borrower or any of its Subsidiaries orany of their respective businesses, other than any such information that isavailable to the Administrative Agent, any Lender or the Issuing Bank on anonconfidential basis prior to disclosure by a Borrower or any of itsSubsidiaries; *provided*that, in the case ofinformation received from a Borrower or any of its Subsidiaries after the datehereof, such information is clearly identified at the time of delivery as confidential.  Any person required to maintain theconfidentiality of Information as provided in this Section shall be consideredto have complied with its obligation to do so if such person has exercised thesame degree of care to maintain the confidentiality of such Information as suchperson would accord to its own confidential information.

**SECTION 10.13  USA PATRIOT Act Notice**.  Each Lender that is subject to the Act (ashereinafter defined) and the Administrative Agent (for itself and not on behalfof any Lender) hereby notifies the Borrowers that pursuant to the requirementsof the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into lawOctober 26, 2001)) (the “**Act**”), it isrequired to obtain, verify and record information that identifies Borrowers,which information includes the name, address and tax identification number ofeach Borrower and other information regarding each Borrower that will allowsuch Lender or the Administrative Agent, as applicable, to identify each Borrowerin accordance with the Act.  This noticeis given in accordance with the requirements of the Act and is effective as tothe Lenders and the Administrative Agent.

**SECTION 10.14  Interest Rate Limitation**.  Notwithstanding anything herein to thecontrary, if at any time the interest rate applicable to any Loan, togetherwith all fees, charges and other amounts which are treated as interest on suchLoan under applicable Requirements of Law (collectively, the “**Charges**”), shall exceed the maximum lawful rate (the “**Maximum Rate**”) which may be contracted for, charged, taken,received or reserved by the Lender holding such Loan in accordance withapplicable Requirements of Law, the rate of interest payable in respect of suchLoan hereunder, together with all Charges payable in respect thereof, shall belimited to the Maximum Rate and, to the extent lawful, the interest and Chargesthat would have been payable in respect of such Loan but were not payable as aresult of the operation of this Section shall be cumulated and the interest andCharges payable to such Lender in respect of other Loans or periods shall beincreased (but not above the Maximum Rate therefor) 

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until such cumulated amount, together with interestthereon at the Federal Funds Effective Rate to the date of repayment, shallhave been received by such Lender.

**SECTION 10.15  Lender Addendum**.  Each Lender to become a party to thisAgreement on the date hereof shall do so by delivering to the AdministrativeAgent a Lender Addendum duly executed by such Lender, the Borrowers and theAdministrative Agent.

**SECTION 10.16  Obligations Absolute**.  To the fullest extent permitted by applicableRequirements of Law, all obligations of the Loan Parties hereunder shall beabsolute and unconditional irrespective of:

### (a)           anybankruptcy, insolvency, reorganization, arrangement, readjustment, composition,liquidation or the like of any Loan Party;

### (b)           anylack of validity or enforceability of any Loan Document or any other agreementor instrument relating thereto against any Loan Party;

### (c)           anychange in the time, manner or place of payment of, or in any other term of, allor any of the Obligations, or any other amendment or waiver of or any consentto any departure from any Loan Document or any other agreement or instrumentrelating thereto;

### (d)           anyexchange, release or non-perfection of any other Collateral, or any release oramendment or waiver of or consent to any departure from any guarantee, for allor any of the Obligations;

### (e)           anyexercise or non-exercise, or any waiver of any right, remedy, power or privilegeunder or in respect hereof or any Loan Document; or

### (f)            anyother circumstances which might otherwise constitute a defense available to, ora discharge of, the Loan Parties.

**SECTION 10.17  Designated Senior Indebtedness**.  Parties hereto agree that Obligations are “DesignatedSenior Indebtedness” for purposes of the Convertible Bond Indenture.

**[**SignaturePages Follow**]**

 

126

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IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be duly executed by their respective authorized officers asof the day and year first above written.
|        | SCIELE PHARMA, INC., as the US Borrower and a  Domestic Guarantor          |
|--------|----------------------------------------------------------------------------|
|   |                                                                       |   |
|   |                                                                       |   |
|   | By:                                                                        | /s/ Darrell Borne |
|   |                                                                       | Name: Darrell Borne |
|   |                                                                       | Title: EVP, CFO, Secretary and Treasurer |
|   |                                                                       |   |
|   |                                                                       |   |
|   | SCIELE PHARMA CAYMAN LTD., as the Cayman Borrower  and a Foreign Guarantor |
|   |                                                                       |   |
|   |                                                                       |   |
|   | By:                                                                        | /s/ Leslie B. Zachs |
|   |                                                                       | Name: Leslie B. Zachs |
|   |                                                                       | Title: Director |
|   |                                                                       |   |
|   |                                                                       |   |
|   | SCIELE PHARMA SALES, INC., as a Domestic Guarantor                         |
|   |                                                                       |   |
|   |                                                                       |   |
|   | By:                                                                        | /s/ David Fisherskeller |
|   |                                                                       | Name: David Fisherskeller |
|   |                                                                       | Title: Secretary |
|   |                                                                       |   |
|   |                                                                       |   |
|   | SCIELE PHARMA IRELAND, LTD., as a Foreign Guarantor                        |
|   |                                                                       |   |
|   |                                                                       |   |
|   | By:                                                                        | /s/ Darrell Borne |
|   |                                                                       | Name: Darrell Borne |
|   |                                                                       | Title: Director |
|   |                                                                       |   |
|   |                                                                       |   |
|   | SCIELE PHARMA CYPRUS, LTD., as a Foreign Guarantor                         |
|   |                                                                       |   |
|   |                                                                       |   |
|   | By:                                                                        | /s/ Michael Milligan |
|   |                                                                       | Name: Michael Milligan |
|   |                                                                       | Title: Director |
|   |                                                                       |   |
|   |                                                                       |   |
|   | FIRST HORIZON PHARMACEUTICAL BV, as a Foreign Guarantor                    |
|   |                                                                       |   |
|   |                                                                       |   |
|   | By:                                                                        | /s/ Darrell Borne |
|   |                                                                       | Name: Darrell Borne |
|   |                                                                       | Title: Director |
|   |                                                                       |   |

 

S-1

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|        |                                                                                 |                          |
|--------|--------------------------------------------------------------------------------------|-------------------------------|
|   | UBS SECURITIES LLC, as Joint Lead Arranger                                           |
|   |                                                                                 |                          |
|   |                                                                                 |                          |
|   | By:                                                                                  | /s/ Richard L. Tavrow         |
|   |                                                                                 | Name: Richard L. Tavrow       |
|   |                                                                                 | Title: Director               |
|   |                                                                                 |                          |
|   |                                                                                 |                          |
|   | By:                                                                                  | /s/ Irja R. Otsa              |
|   |                                                                                 | Name: Irja R. Otsa            |
|   |                                                                                 | Title: Associate Director     |
|   |                                                                                 |                          |
|   |                                                                                 |                          |
|   | LASALLE BANK NATIONAL ASSOCIATION, as Joint Lead Arranger  and Syndication Agent     |
|   |                                                                                 |                          |
|   |                                                                                 |                          |
|   | By:                                                                                  | /s/ Patrick J. O’Toole   |
|   |                                                                                 | Name: Patrick J. O’Toole |
|   |                                                                                 | Title: First Vice President   |
|   |                                                                                 |                          |
|   |                                                                                 |                          |
|   | UBS AG, STAMFORD BRANCH, as Issuing Bank,  Administrative Agent and Collateral Agent |
|   |                                                                                 |
|   |                                                                                 |
|   | By:                                                                                  | /s/ Richard L. Tavrow         |
|   |                                                                                 | Name: Richard L. Tavrow       |
|   |                                                                                 | Title: Director               |
|   |                                                                                 |                          |
|   |                                                                                 |                          |
|   | By:                                                                                  | /s/ Irja R. Otsa              |
|   |                                                                                 | Name: Irja R. Otsa            |
|   |                                                                                 | Title: Associate Director     |
|   |                                                                                 |                          |
|   |                                                                                 |                          |
|   | UBS LOAN FINANCE LLC, as Swingline Lender                                            |
|   |                                                                                 |
|   |                                                                                 |
|   | By:                                                                                  | /s/ Richard L. Tavrow         |
|   |                                                                                 | Name: Richard L. Tavrow       |
|   |                                                                                 | Title: Director               |
|   |                                                                                 |                          |
|   |                                                                                 |                          |
|   | By:                                                                                  | /s/ Irja R. Otsa              |
|   |                                                                                 | Name: Irja R. Otsa            |
|   |                                                                                 | Title: Associate Director     |

 

S-2

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**Annex I**

**Applicable Margin**

 

|                                        | ** ** | **Revolving Loans** | ** ** | ** ** | ** ** |
|----------------------------------------|------------|---------------------|------------|------------|------------|
| **Total Leverage Ratio**     | ** ** | **Eurodollar**      | ** ** | **ABR**    | ** ** | **Applicable  Fee** | ** ** |
| **Level I**                            |       |                |       |       |       |   |   |
| **<1.50:1.0**                       |       | 1.750               | %          | 0.750      | %          | 0.375 | % |
| ** **                             |       |                |       |       |       |   |   |
| **Level II**                           |       |                |       |       |       |   |   |
| **<2.00:1.0 but****31.50:1.0** |       | 2.000               | %          | 1.000      | %          | 0.375 | % |
| ** **                             |       |                |       |       |       |   |   |
| **Level III**                          |       |                |       |       |       |   |   |
| **<2.50:1.0 but****32.00:1.0** |       | 2.250               | %          | 1.250      | %          | 0.375 | % |
| ** **                             |       |                |       |       |       |   |   |
| **Level IV**                           |       |                |       |       |       |   |   |
| **32.50:1.0**                     |       | 2.500               | %          | 1.500      | %          | 0.500 | % |

 

Each change in the Applicable Margin or Applicable Feeresulting from a change in the  TotalLeverage Ratio shall be effective with respect to all Loans and Letters ofCredit outstanding on and after the date of delivery to the AdministrativeAgent of the financial statements and certificates required by Section 5.01(a)or (b) and Section 5.01(d), respectively, indicating suchchange until the date immediately preceding the next date of delivery of suchfinancial statements and certificates indicating another such change.  Notwithstanding the foregoing, the TotalLeverage Ratio shall be deemed to be in (A) Level II from the Closing Dateto the date of delivery to the Administrative Agent of the financial statementsand certificates required by Section 5.01(a) or (b) and Section 5.01(d)for the fiscal period ended at least six months after the Closing Date, and (B)Level IV (i) at any time during which any Borrower has failed to deliverthe financial statements and certificates required by Section 5.01(a)or (b) and Section 5.01(d), respectively, and (ii) atany time during the existence of an Event of Default

 

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