Exhibit 10.1


 


EXECUTION COPY


 




 





$375,000,000

CREDIT AGREEMENT AND GUARANTY


 


dated as of December 16, 2005


 


among


 


HOSPIRA, INC.,

as the Borrower and the Guarantor,


 


THE SUBSIDIARY BORROWERS

FROM TIME TO TIME PARTY HERETO,


 


THE BANKS AND FINANCIAL INSTITUTIONS LISTED HEREIN,

as Lenders,


 


CITIGROUP GLOBAL MARKETS INC.,

ABN AMRO INCORPORATED

and

MORGAN STANLEY SENIOR FUNDING, INC.,

as Joint Lead Bookunners and Joint Lead Arrangers,


 


ABN AMRO BANK N.V.

and

MORGAN STANLEY SENIOR FUNDING, INC.,

as Joint Syndication Agents,


 


and


 


BANK OF AMERICA, N.A.

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents


 


CITICORP NORTH AMERICA, INC.,

as Administrative Agent




 





 





















 


CREDIT AGREEMENT


 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.
  DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  1.1

  	
  Certain Defined Terms

  	
  1

  
	
  1.2

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

  	
  22

  
	
  1.3

  	
  Other Definitional
  Provisions and Rules of Construction

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 2.
  AMOUNT AND TERMS OF COMMITMENTS AND LOANS

  	
  23

  
	
   

  	
   

  
	
  2.1

  	
  Commitment; Making of
  Loans; Letters of Credit

  	
  23

  
	
  2.2

  	
  Issuance of Letters of
  Credit and Purchase of Participations Therein

  	
  25

  
	
  2.3

  	
  Pro Rata Shares;
  Availability of Funds; UCP

  	
  28

  
	
  2.4

  	
  The Register; Evidence
  of Debt; Notes

  	
  29

  
	
  2.5

  	
  Interest on the Loans

  	
  30

  
	
  2.6

  	
  Fees

  	
  34

  
	
  2.7

  	
  Provisions Regarding
  Payments

  	
  35

  
	
  2.8

  	
  Increased Costs; Taxes

  	
  38

  
	
  2.9

  	
  Special Provisions
  Governing LIBOR Rate Loans

  	
  42

  
	
  2.10

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

  	
  43

  
	
  2.11

  	
  Defaulting Lenders

  	
  44

  
	
  2.12

  	
  Removal or Replacement
  of a Lender

  	
  45

  
	
  2.13

  	
  Mitigation

  	
  45

  
	
  2.14

  	
  Increase in the
  Aggregate Commitments

  	
  46

  
	
  2.15

  	
  Extension of Maturity
  Date

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 3.
  CONDITIONS PRECEDENT

  	
  49

  
	
   

  	
   

  
	
  3.1

  	
  Conditions to
  Effectiveness

  	
  49

  
	
  3.2

  	
  Conditions Precedent to
  each Credit Extension

  	
  51

  
	
  3.3

  	
  Conditions Precedent to
  each Commitment Increase and Extension Date

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 4.
  REPRESENTATIONS AND WARRANTIES

  	
  52

  
	
   

  	
   

  
	
  4.1

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

  	
  52

  
	
  4.2

  	
  Authorization of
  Borrowing, etc.

  	
  53

  
	
  4.3

  	
  Disclosure

  	
  53

  
	
  4.4

  	
  Financial Condition

  	
  54

  
	
  4.5

  	
  No Material Adverse
  Change

  	
  54

  
	
  4.6

  	
  Intellectual Property
  Matters

  	
  54

  
	
  4.7

  	
  No Litigation;
  Compliance with Laws

  	
  55

  
	
  4.8

  	
  No Default

  	
  55

  



 


i





















 


	
  4.9

  	
  Governmental Regulation

  	
  55

  
	
  4.10

  	
  Securities Activities

  	
  55

  
	
  4.11

  	
  Employee Benefit Plans

  	
  56

  
	
  4.12

  	
  Environmental
  Protection

  	
  56

  
	
  4.13

  	
  Pari Passu

  	
  57

  
	
  4.14

  	
  Restrictions

  	
  57

  
	
   

  	
   

  	
   

  
	
  SECTION 5.
  AFFIRMATIVE COVENANTS

  	
  57

  
	
   

  	
   

  
	
  5.1

  	
  Financial Statements
  and Other Reports

  	
  57

  
	
  5.2

  	
  Books and Records

  	
  60

  
	
  5.3

  	
  Existence

  	
  60

  
	
  5.4

  	
  Insurance

  	
  60

  
	
  5.5

  	
  Payment of Taxes and
  Claims

  	
  60

  
	
  5.6

  	
  Payment and Performance
  of Obligations

  	
  61

  
	
  5.7

  	
  Maintenance of
  Properties

  	
  61

  
	
  5.8

  	
  Compliance with Laws

  	
  61

  
	
  5.9

  	
  Use of Proceeds

  	
  61

  
	
  5.10

  	
  Claims Pari Passu

  	
  61

  
	
  5.11

  	
  Further Assurances

  	
  62

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  NEGATIVE COVENANTS

  	
  62

  
	
   

  	
   

  
	
  6.1

  	
  Liens

  	
  62

  
	
  6.2

  	
  Indebtedness

  	
  64

  
	
  6.3

  	
  Acquisitions

  	
  65

  
	
  6.4

  	
  Restrictions on
  Subsidiary Distributions

  	
  65

  
	
  6.5

  	
  Restricted Payments

  	
  66

  
	
  6.6

  	
  Restriction on
  Fundamental Changes and Asset Sales

  	
  66

  
	
  6.7

  	
  Conduct of Business

  	
  66

  
	
  6.8

  	
  Fiscal Year

  	
  66

  
	
  6.9

  	
  Other Indebtedness

  	
  66

  
	
  6.10

  	
  Transactions with
  Shareholders and Affiliates

  	
  67

  
	
  6.11

  	
  Financial Covenants

  	
  67

  
	
  6.12

  	
  Interest Rate
  Agreements and Currency Agreements

  	
  68

  
	
   

  	
   

  	
   

  
	
  SECTION 7.
  GUARANTY

  	
  68

  
	
   

  	
   

  
	
  7.1

  	
  Guaranty of the
  Obligations

  	
  68

  
	
  7.2

  	
  Payment by the Borrower

  	
  68

  
	
  7.3

  	
  Liability of Guarantor
  Absolute

  	
  68

  
	
  7.4

  	
  Waivers by Guarantor

  	
  70

  
	
  7.5

  	
  Guarantor’s Rights of
  Subrogation, Contribution, etc

  	
  71

  
	
  7.6

  	
  Subordination of Other
  Obligations

  	
  72

  
	
  7.7

  	
  Continuing Guaranty

  	
  72

  
	
  7.8

  	
  Authority of Credit
  Parties

  	
  72

  
	
  7.9

  	
  Financial Condition of
  Credit Parties

  	
  72

  



 


ii





















 


	
  7.10

  	
  Bankruptcy, etc.

  	
  72

  
	
   

  	
   

  	
   

  
	
  SECTION 8.
  EVENTS OF DEFAULT

  	
  73

  
	
   

  	
   

  
	
  8.1

  	
  Failure to Make
  Payments When Due

  	
  73

  
	
  8.2

  	
  Default in Other
  Agreements

  	
  73

  
	
  8.3

  	
  Breach of Certain
  Covenants

  	
  74

  
	
  8.4

  	
  Breach of
  Representation or Warranty

  	
  74

  
	
  8.5

  	
  Other Defaults Under
  Loan Documents

  	
  74

  
	
  8.6

  	
  Involuntary Bankruptcy;
  Appointment of Receiver, etc.

  	
  74

  
	
  8.7

  	
  Voluntary Bankruptcy;
  Appointment of Receiver, etc.

  	
  75

  
	
  8.8

  	
  Judgments and
  Attachments

  	
  75

  
	
  8.9

  	
  Dissolution

  	
  75

  
	
  8.10

  	
  Employee Benefit Plans

  	
  75

  
	
  8.11

  	
  Change in Control

  	
  75

  
	
  8.12

  	
  Repudiation of
  Obligations

  	
  75

  
	
   

  	
   

  	
   

  
	
  SECTION 9.
  MISCELLANEOUS

  	
  76

  
	
   

  	
   

  
	
  9.1

  	
  Assignments and
  Participations in Loans and Letters of Credit

  	
  76

  
	
  9.2

  	
  Expenses

  	
  78

  
	
  9.3

  	
  Indemnity

  	
  79

  
	
  9.4

  	
  Exception for
  Subsidiary Borrowers

  	
  80

  
	
  9.5

  	
  Set-Off

  	
  80

  
	
  9.6

  	
  Amendments and Waivers

  	
  81

  
	
  9.7

  	
  Independence of
  Covenants

  	
  81

  
	
  9.8

  	
  Notices

  	
  81

  
	
  9.9

  	
  Survival of
  Representations, Warranties and Agreements

  	
  83

  
	
  9.10

  	
  Failure or Indulgence
  Not Waiver; Remedies Cumulative

  	
  83

  
	
  9.11

  	
  Marshalling; Payments
  Set Aside

  	
  84

  
	
  9.12

  	
  Severability

  	
  84

  
	
  9.13

  	
  Headings

  	
  84

  
	
  9.14

  	
  Applicable Law

  	
  84

  
	
  9.15

  	
  Successors and Assigns

  	
  84

  
	
  9.16

  	
  Consent to Jurisdiction
  and Service of Process

  	
  85

  
	
  9.17

  	
  Waiver of Jury Trial

  	
  85

  
	
  9.18

  	
  Confidentiality

  	
  86

  
	
  9.19

  	
  Ratable Sharing

  	
  87

  
	
  9.20

  	
  Counterparts;
  Effectiveness

  	
  87

  
	
  9.21

  	
  Obligations Several;
  Independent Nature of Lenders’ Rights

  	
  87

  
	
  9.22

  	
  Usury Savings Clause

  	
  88

  
	
  9.23

  	
  Judgment Currency

  	
  88

  
	
  9.24

  	
  Termination of Existing
  Credit Agreement

  	
  89

  
	
   

  	
   

  	
   

  
	
  SECTION 10.
  AGENTS

  	
  89

  
	
   

  	
   

  
	
  10.1

  	
  Appointment

  	
  89

  



 


iii





















 


	
  10.2

  	
  Powers and Duties;
  General Immunity

  	
  89

  
	
  10.3

  	
  Representations and
  Warranties; No Responsibility For Appraisal of Creditworthiness

  	
  91

  
	
  10.4

  	
  Right to Indemnity

  	
  91

  
	
  10.5

  	
  Successor
  Administrative Agent

  	
  92

  
	
  10.6

  	
  Agents Under Guaranty

  	
  92

  
	
  10.7

  	
  Acknowledgment of
  Potential Related Transactions

  	
  92

  
	
   

  	
   

  	
   

  
	
  SECTION 11.
  SUBSIDIARY BORROWERS

  	
  92

  
	
   

  	
   

  
	
  11.1

  	
  Joinder of Subsidiary
  Borrowers

  	
  92

  
	
  11.2

  	
  Termination of Status
  as Subsidiary Borrower

  	
  94

  



 


iv





















 


EXHIBITS


 


	
  I

  	
  FORM OF NOTICE OF BORROWING

  
	
  II

  	
  FORM OF CONVERSION/CONTINUATION NOTICE

  
	
  III

  	
  FORM OF NOTE

  
	
  IV

  	
  FORM OF CERTIFICATE RE NON-BANK STATUS

  
	
  V

  	
  FORM OF ASSIGNMENT AGREEMENT

  
	
  VI

  	
  FORM OF ISSUANCE NOTICE

  
	
  VII

  	
  FORM OF SECRETARY’S CERTIFICATE

  
	
  VIII

  	
  FORM OF OFFICER’S CERTIFICATE

  
	
  IX

  	
  FORM OF JOINDER AGREEMENT

  



 


v





















 


SCHEDULES


 


	
  2.1A

  	
  LENDERS’ COMMITMENTS AND PRO RATA SHARES

  
	
  6.1

  	
  LIENS

  
	
  6.2

  	
  SUBSIDIARY INDEBTEDNESS

  
	
  6.10

  	
  TRANSACTIONS WITH AFFILIATES

  



 


vi





















 


CREDIT AGREEMENT AND GUARANTY


 


This CREDIT
AGREEMENT AND GUARANTY is dated as of December 16, 2005 and entered into
by and among Hospira, Inc., a Delaware corporation (the “Borrower”), the Subsidiary Borrowers from time to time party
hereto, the banks and financial institutions listed on the signature pages hereof
(collectively, the “Initial Lenders”),
Citigroup Global Markets, Inc. (“CGMI”), ABN
AMRO Incorporated (“ABN AMRO”) and
Morgan Stanley Senior Funding, Inc. (“MSSF”) as joint
lead bookrunners and joint lead arrangers (in such capacity, the “Lead Arrangers”), ABN AMRO Bank N.V. (“ABN AMRO
Bank”) and MSSF as joint syndication agents (in such capacity, the “Syndication Agents”), BANK OF AMERICA, N.A. and WACHOVIA
BANK, NATIONAL ASSOCIATION, as co-documentation agents (in such capacity, the “Documentation Agents”) and Citicorp North America, Inc.
as administrative agent for the Lenders (“Citicorp” and
in such capacity, the “Administrative Agent”).


 


PRELIMINARY STATEMENTS


 


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


 


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


 


SECTION 1.                            DEFINITIONS


 


1.1                               Certain
Defined Terms.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Affiliate”
means, as applied to any Person, any other Person directly or indirectly controlling,
controlled by, or under common control with, that Person.  For the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling”, “controlled by”
and “under common control with”), as applied to any Person, means the
possession, directly or indirectly, of the power (i) to vote 10% or more
of the


 





















 


Securities having ordinary voting power for the
election of directors of such Person or (ii) to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2





















 


	
  Performance Level

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  	
  Level V

  	
   

  
	
  Base Rate Applicable Margin

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0.25

  	
  %

  
	
  LIBOR Applicable Margin

  	
   

  	
  0.225

  	
  %

  	
  0.310

  	
  %

  	
  0.450

  	
  %

  	
  0.475

  	
  %

  	
  0.750

  	
  %

  
	
  Facility Fee

  	
   

  	
  0.075

  	
  %

  	
  0.090

  	
  %

  	
  0.100

  	
  %

  	
  0.150

  	
  %

  	
  0.250

  	
  %

  
	
  Utilization Fee

  	
   

  	
  0.050

  	
  %

  	
  0.050

  	
  %

  	
  0.075

  	
  %

  	
  0.125

  	
  %

  	
  0.250

  	
  %

  



 


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


 


	
  Performance Level

  	
   

  	
  Public Debt Rating

  
	
  Level I

  	
   

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

  
	
  Level II

  	
   

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

  
	
  Level III

  	
   

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

  
	
  Level IV

  	
   

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

  
	
  Level V

  	
   

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

  



 


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


 


3





















 


date on which such change is first announced publicly
by the rating agency making such change; and (vi) if S&P or Moody’s
shall change the basis on which such public debt ratings are established, each
reference to the public debt rating announced by S&P or Moody’s, as the
case may be, shall refer to the then-equivalent rating by S&P or Moody’s,
as the case may be.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Bahamian Subsidiary” means Hospira Ltd.


 


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


 


4





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Canadian
Dollars” means the lawful money of Canada.


 


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


 


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


 


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


 


5





















 


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


 


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


 


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


 


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


 


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


 


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


 


6





















 


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


 


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


 


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


 


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


 


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


 


“Commitment Date” shall have the meaning
specified in Section 2.14B.


 


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


 


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


 


“Compliance Certificate”
means a certificate of the chief financial officer, treasurer or controller of
the Borrower setting forth computations in reasonable detail demonstrating (i) compliance
with the covenants set forth in Section 6.11, as at the end of the period
covered by such financial statements, and (ii) certifying that such
officer has obtained no


 


7





















 


knowledge of any
Potential Event of Default or Event of Default except as specified in such
certificate.


 


“Consenting Lender” shall have the meaning
specified in Section 2.15B.


 


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


 


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


 


“Consolidated
Financing Expense” means, in respect of the Borrower and its
Subsidiaries on a consolidated basis, for any period, total interest expense
(including that portion attributable to Capital Leases in accordance with GAAP
and capitalized interest) with respect to all outstanding Indebtedness of the
Borrower and its Subsidiaries, including all commissions, discounts and other
fees and charges owed with respect to any letters of credit and bankers’
acceptance financing and net costs under Interest Rate Agreements.


 


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


 


8





















 


returned surplus assets of any Pension Plan, and (e) (to
the extent not included in clauses (a) through (d) above) any net
extraordinary gains or net non-cash extraordinary losses.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Dollar
Amount” means, at any time:


 


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


 


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


 


10





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11





















 


ERISA Affiliate of the Borrower and with respect to
liabilities arising after such period relating to the period that such entity
was an ERISA Affiliate.


 


“ERISA Event”
means (i) a “reportable event” within the meaning of Section 4043 of
ERISA and the regulations issued thereunder with respect to any Pension Plan
(excluding those for which 30-day notice to the PBGC has been waived); (ii) the
failure to meet the minimum funding standard of Section 412 of the
Internal Revenue Code with respect to any Pension Plan (whether or not waived
in accordance with Section 412(d) of the Internal Revenue Code) or
the failure to make by its due date a required installment under Section 412(m)
of the Internal Revenue Code with respect to any Pension Plan or the failure to
make any required contribution to a Multiemployer Plan; (iii) the
provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of
ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by
the Borrower or any of its ERISA Affiliates from any Pension Plan with two or
more contributing sponsors or the termination of any such Pension Plan
resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which might reasonably constitute grounds
under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on the
Borrower or any of its ERISA Affiliates pursuant to Section 4062(e) or
4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal by the Borrower, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential withdrawal liability to the Borrower or any of
its ERISA Affiliates as a result of the withdrawal, or the receipt by the
Borrower or any of its ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A
or 4042 of ERISA; (viii) the occurrence of an act or omission which could
give rise to the imposition on the Borrower, any of its Subsidiaries or any of
their respective ERISA Affiliates of fines, penalties, taxes or related charges
under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Employee
Benefit Plan, in each case in an amount that would be material; (ix) the
assertion of a material claim (other than routine claims for benefits) against
any Employee Benefit Plan or the assets thereof, or against the Borrower or any
of its ERISA Affiliates in connection with any Employee Benefit Plan; (x)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan to qualify under Section 401(a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan to qualify
for exemption from taxation under Section 501(a) of the Internal
Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any
Pension Plan.


 


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


 


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


 


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


 


12





















 


“Extension Date” shall have the meaning
specified in Section 2.15B.


 


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


 


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


 


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


 


“Fee Letter”
means the Fee Letter, dated November 9, 2005, among the Borrower, Citicorp
and CGMI, as the same may be amended, supplemented or otherwise modified from
time to time.


 


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


 


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


 


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


 


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


 


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


 


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


 


13





















 


States accounting profession, in each case as the same
are applicable to the circumstances as of the date of determination.


 


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


 


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


 


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


 


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


 


“Guarantor”
means the Borrower.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Indebtedness”,
as applied to any Person, means (i) all indebtedness for borrowed money; (ii) that
portion of obligations with respect to Capital Leases that is classified as a
liability on a balance sheet in conformity with GAAP; (iii) notes payable
and drafts accepted


 


14





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


15





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Lender”
and “Lenders” shall mean the Initial
Lenders, each Assuming Lender that shall become a party hereto pursuant to Section 2.14
or 2.15 and each Person that shall become a party hereto pursuant to Section 9.15.


 


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


 


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


 


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


 


“Letter of
Credit Usage” means, as at any date of determination, the sum of (i) the
maximum aggregate amount which is, or at any time thereafter may become,
available for


 


16





















 


drawing under all Letters of Credit then outstanding,
and (ii) the aggregate amount of all drawings under Letters of Credit
honored by the Issuing Bank and not theretofore reimbursed by or on behalf of
the Borrower.


 


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


 


“LIBOR”
means, for any Interest Rate Determination Date, the offered rate in the London
interbank market for deposits in Dollars or the relevant Alternative Currency
offered for a term comparable to such Interest Period that appears on Telerate Page 3750
as of approximately 11:00 A.M., London time (or such other page as
may replace such page on such service for the purpose of displaying the
rates at which such Dollar or Alternative Currency deposits are offered by
leading banks in the London interbank deposit market), or if no quotation
appears on Telerate Page 3750, the average rate per annum which the
offices of four leading banks selected by the Administrative Agent and located
in London offer for deposits in Dollars or the relevant Alternative Currency in
the London interbank deposit market at approximately 11:00 a.m. (London
time).


 


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


 


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


 


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


 


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


 


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


 


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


 


“Maturity
Date” means the earliest to occur of (i) the fifth anniversary
of the Effective Date, subject to the extension thereof pursuant to Section 2.15,
(ii) the date the Commitments are permanently reduced to zero pursuant to Section 2.7B,
and (iii) the date of the


 


17





















 


termination of the Commitments pursuant to Section 8;
provided, however, that the Maturity Date of any Lender that is a
Non-Consenting Lender to any requested extension pursuant to Section 2.15
shall be the Maturity Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.


 


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


 


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


 


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


 


“Non-Consenting Lender” shall have the
meaning specified in Section 2.15B.


 


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


 


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


 


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


 


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


 


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


 


“Organizational
Documents” means (i) with respect to any corporation, its
certificate or articles of incorporation or organization, as amended, and its
by laws, as amended,


 


18










 













 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Qualified
Receivables Transaction” means any transaction or series of
transactions that may be entered into by the Borrower or any Subsidiary of the
Borrower pursuant to which the Borrower or any such Subsidiary may sell,
convey, pledge or otherwise transfer to a newly-formed Subsidiary of the
Borrower or other special purpose entity, or any other Person, any accounts
receivable (including chattel paper, instruments and general


 


19





















 


intangibles) or notes receivable and the rights and
certain other property related thereto, provided that (i) all of the terms
and conditions of such transaction or series of transactions, including the
amount and type of any recourse to the Borrower or a Subsidiary of the Borrower
with respect to the assets transferred, are acceptable to the Administrative
Agent and the Requisite Lenders and (ii) the Receivables Transaction
Attributed Indebtedness incurred in all such transactions does not exceed
$150,000,000 at any time outstanding.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


20





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


21





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


22





















 


1.3                               Other
Definitional Provisions and Rules of Construction.


 


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


 


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


 


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


 


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


 


SECTION 2.                            AMOUNT AND TERMS OF COMMITMENTS AND LOANS


 


2.1                               Commitment;
Making of Loans; Letters of Credit.


 


A.            Commitments.


 


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


 


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


 


23





















 


B.            Borrowing
Mechanics.


 


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


 


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


 


(a)           the
Currency;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


24





















 


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


 


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


 


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


 


B.            Notice
of Issuance.  Each Letter of Credit
shall be issued upon notice, given not later than 11:00 A.M.
(New York City time) on the fifth Business Day prior to the date of the
proposed Issuance of such Letter of Credit (or on such shorter notice as the
Issuing Bank may agree), by the Borrower to the Issuing Bank, and such Issuing
Bank shall give the Administrative Agent, prompt notice thereof.  Each such Issuance Notice by the Borrower shall
be by facsimile or telephone, confirmed immediately in writing, specifying
therein the requested (A) date of such Issuance (which shall be a Business
Day), (B) Available Amount of such Letter of Credit, (C) expiration
date of such Letter of Credit, (D) name and address of the beneficiary of
such Letter of Credit and (E) form of such Letter of Credit.  Such Letter of Credit shall be issued
pursuant to such application and agreement for letter of credit as the Issuing
Bank and the Borrower shall agree for use in connection with such requested
Letter of Credit (a “Letter of


 


25





















 


Credit Agreement”).  If the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its reasonable discretion (it being
understood that any such form shall have only explicit documentary conditions
to draw and shall not include discretionary conditions), the Issuing Bank will,
unless any Lender gives prior notice to the Issuing Bank or the Administrative
Agent that the applicable conditions of Section 3.2 would not be satisfied
at the time of such issuance, upon fulfillment of the applicable conditions set
forth in Section 3.2, make such Letter of Credit available to the Borrower
at its office referred to in Section 9.8 or as otherwise agreed with the
Borrower in connection with such Issuance. 
In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.


 


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


 


D.            Reimbursement
by the Borrower of Amounts Drawn or Paid Under Letters of Credit.  In the event the Issuing Bank has determined
to honor a drawing under a Letter of Credit, it shall immediately notify the
Borrower and the Administrative Agent, and the Borrower shall reimburse the
Issuing Bank on or before the Business Day immediately following the date


 


26





















 


on which such drawing is honored (the “Reimbursement Date”) in an amount in
Dollars and in same day funds equal to the amount of such honored drawing; provided,
anything contained herein to the contrary notwithstanding, (i) unless the
Borrower shall have notified the Administrative Agent and the Issuing Bank
prior to 10:00 a.m. (New York City time) on the date such drawing is
honored that the Borrower intends to reimburse the Issuing Bank for the amount
of such honored drawing with funds other than the proceeds of Loans, the
Borrower shall be deemed to have given a timely Notice of Borrowing to the
Administrative Agent requesting the Lenders to make Base Rate Loans on the
Reimbursement Date in an amount in Dollars equal to the amount of such honored
drawing, and (ii) subject to satisfaction or waiver of the applicable
conditions specified in Section 3.2, the Lenders shall, on the
Reimbursement Date, make Base Rate Loans in the amount of such honored drawing,
the proceeds of which shall be applied directly by the Administrative Agent to
reimburse the Issuing Bank for the amount of such honored drawing; and provided
further, if for any reason proceeds of Loans are not received by the
Issuing Bank on the Reimbursement Date in an amount equal to the amount of such
honored drawing, the Borrower shall reimburse the Issuing Bank, on demand, in
an amount in same day funds equal to the excess of the amount of such honored
drawing over the aggregate amount of such Loans, if any, which are so
received.  Nothing in this Section 2.2D
shall be deemed to relieve any Lender from its obligation to make Loans on the
terms and conditions set forth herein, and the Borrower shall retain any and
all rights it may have against any Lender resulting from the failure of such
Lender to make such Loans under this Section 2.2D.


 


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


 


27





















 


with respect to such honored drawing such
Lender’s Pro Rata Share of all payments subsequently received by the Issuing
Bank from the Borrower in reimbursement of such honored drawing when such
payments are received.  Any such distribution
shall be made to a Lender at its notice address set forth on the signature pages hereto
or at such other address as such Lender may request.


 


F.             Obligations
Absolute.  The obligation of the
Borrower to reimburse the Issuing Bank for drawings honored under the Letters
of Credit issued by it and to repay any Loans made by Lenders pursuant to Section 2.2D
and the obligations of Lenders under Section 2.2E shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances:  (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim,
set off, defense or other right which the Borrower or any Lender may have at
any time against a beneficiary or any transferee of any Letter of Credit (or
any Persons for whom any such transferee may be acting), the Issuing Bank, any
Lender or any other Person or, in the case of a Lender, against the Borrower,
whether in connection herewith, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction between the
Borrower or one of its Subsidiaries and the beneficiary for which any Letter of
Credit was procured); (iii) any draft or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; (iv) payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or other document which does not strictly
comply with the terms of such Letter of Credit; (v) the occurrence of any
Material Adverse Effect; (vi) any breach hereof or any other Loan Document
by any party thereto; (vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing; or (viii) the
fact that an Event of Default or a Potential Event of Default shall have
occurred and be continuing; provided, in each case, that payment by the
Issuing Bank under the applicable Letter of Credit shall not have constituted
gross negligence or willful misconduct of the Issuing Bank under the
circumstances in question.


 


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


 


2.3                               Pro
Rata Shares; Availability of Funds; UCP.


 


A.            Pro
Rata Shares.  All Loans shall be
made, and all participations purchased, by the Lenders (or, if applicable, by
their Affiliates) simultaneously and proportionately to their respective Pro
Rata Shares (determined as of the date of such Loans or such purchases, as the
case may be), it being understood that no Lender shall be responsible for any
default by any


 


28





















 


other Lender in such other Lender’s
obligation to make a Loan requested hereunder or purchase a participation
required hereby nor shall any Commitment of any Lender be increased or
decreased as a result of a default by any other Lender in such other Lender’s
obligation to make a Loan requested hereunder or purchase a participation
required hereby.  Each Lender
acknowledges and agrees that its participation in each Letter of Credit will be
automatically adjusted to reflect such Lender’s Pro Rata Share of each Letter
of Credit at each time such Lender’s Commitment is increased pursuant to Section 2.14,
reduced on a date prior to the date to which the Maturity Date may have been
extended pursuant to Section 2.15, amended pursuant to an assignment in
accordance with Section 9.1 or otherwise changed pursuant to this
Agreement.


 


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


 


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


 


2.4                               The
Register; Evidence of Debt; Notes.


 


A.            Register.


 


(i)            The
Administrative Agent shall maintain at its Payment and Funding Office a
register for the recordation of the names and addresses of the Lenders and the
Commitment and Loans of each Lender from time to time (the “Register”). 
The Register shall be available for inspection by the Credit Parties or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.  The Administrative Agent shall
record in the Register the Commitment and the Loans of each Lender, and each
repayment or prepayment in respect of the principal amount of such Loans.  Any such recordation shall be prima facie
evidence of the


 


29





















 


amount owed to such Lender hereunder; provided
that failure to make any such recordation, or any error in such recordation,
shall not affect any Lender’s Commitment or the Obligations in respect of any
Loan.  The Credit Parties hereby
designate Citicorp to serve as the Credit Parties’ agent solely for purposes of
maintaining the Register as provided in this Section 2.4, and the Credit
Parties hereby agree that, to the extent Citicorp serves in such capacity,
Citicorp and its officers, directors, employees, agents and affiliates shall
constitute “Indemnitees” hereunder.


 


(ii)           The
Credit Parties, the Administrative Agent and the Lenders shall deem and treat
the Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any Commitment or Loan shall be effective, in each
case unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent and
recorded in the Register as provided in Section 9.1C.  Prior to such recordation, all amounts owed
with respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive
and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.


 


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


 


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


 


2.5                               Interest
on the Loans.


 


A.            Rate
of Interest; Type of Loan.


 


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


 


(ii)           The
basis for determining the rate of interest with respect to any Loan and the
Interest Period with respect to any LIBOR Rate Loan, shall be selected by the
applicable Credit Party and notified to the Administrative Agent and the
Lenders pursuant to the applicable Notice of Borrowing or
Conversion/Continuation Notice, as the case may be.  If on any day a


 


30





















 


Loan is outstanding with respect to which a
Notice of Borrowing or Conversion/Continuation Notice has not been delivered to
the Administrative Agent in accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such
Loan shall be a Base Rate Loan.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


31





















 


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


 


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


 


E.             Computation
of Interest.


 


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


 


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


 


32





















 


F.             Conversion/Continuation.


 


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


 


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


 


(b)           upon
the expiration of any Interest Period applicable to any Borrowing LIBOR Rate
Loans, to continue all or any portion of such Loans in a minimum amount of
$5,000,000 or a higher integral multiple of 1,000,000 units of the applicable
currency as LIBOR Rate Loans.


 


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


 


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


 


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


 


33





















 


honored drawing such Lender’s Pro Rata Share
of any interest received by the Issuing Bank in respect of that portion of such
honored drawing so reimbursed by the Lenders for the period from the date on
which the Issuing Bank was so reimbursed by the Lenders to but excluding the
date on which such portion of such honored drawing is reimbursed by the
Borrower.


 


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


 


2.6                               Fees.


 


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


 


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


 


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


 


(b)           Utilization
Fee:  From the Effective Date until
the Maturity Date, for each day on which the outstanding principal amount of
the Loans exceeds 50% of the total Commitments, the Borrower shall pay a
utilization fee (the “Utilization Fee”)
to each Lender, ratably in accordance with such Lender’s outstanding Loans
during the applicable period, determined by reference to the pricing grid set
forth in the definition of Applicable Margin. 
The Utilization Fee will be paid quarterly in arrears and on the
Maturity Date; and


 


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


 


34





















 


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


 


(a)           a
fronting fee equal to 0.125% per annum (or such other rate as may be agreed to
by the Borrower and the Issuing Bank), times the average aggregate daily
maximum amount available to be drawn under all Letters of Credit (determined as
of the close of business on any date of determination); and


 


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


 


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


 


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


 


2.7                               Provisions
Regarding Payments.


 


A.            Voluntary
Prepayments.


 


(i)            Any
time and from time to time:


 


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


 


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


 


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


 


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


 


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


 


35





















 


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


 


B.            Voluntary
Commitment Reductions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


third, to cash collateralize Letters of Credit; and


 


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


 


E.             General
Provisions Regarding Payments.


 


(i)            Manner
and Time of Payment.  All payments by
the Credit Parties of principal, interest, fees and other Obligations shall be
made in Dollars or, with respect to


 


36





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


37





















 


Business Day) at the rate determined pursuant
to Section 2.5D from the date such amount was due and payable until the
date such amount is paid in full.


 


2.8                               Increased
Costs; Taxes.


 


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


 


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


 


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


 


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


 


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


 


38





















 


B.            Withholding
of Taxes.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(a)           Each
Lender that is not a United States Person (as such term is defined in Section 7701(a)(30)
of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US Lender”) shall deliver to the
Administrative Agent for transmission to the Credit Parties, on or prior to the
Effective Date (in the case of each Lender listed on the signature pages hereof
on the Effective Date) or on or prior to the date of the Assumption Agreement
or Assignment Agreement, as applicable, pursuant to which it becomes a Lender
(in the case of


 


39





















 


each other Lender), and at such other times
as may be necessary in the determination of the Credit Parties or
Administrative Agent (each in the reasonable exercise of its discretion), (x)
two original copies of Internal Revenue Service Form W-8BEN or W-8ECI (or
any successor forms), properly completed and duly executed by such Lender, and
such other documentation required under the Internal Revenue Code or reasonably
requested by the Credit Parties to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to
any payments to such Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents.


 


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


 


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


 


(iv)          If
a payment is made by a Credit Party under the foregoing provisions of this Section 2.8(B) for
the account of any Lender and such Lender, in its sole opinion, determines that
it has irrevocably received or been granted a credit against, or relief or
remission from, or repayment or refund of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or withholding giving
rise to such additional payment, such Lender shall, to the extent that it
determines that it can do so without prejudice to the retention of the amount
of such credit, relief, remission or repayment, pay to such Credit Party such
amount as such Lender shall, in its sole opinion, have determined is
attributable to such deduction or withholding and will leave such Lender (after
such payment) in no worse position than it would have been had such Credit
Party not been required to make such deduction or withholding.


 


40





















 


Nothing contained herein shall (i) interfere
with the right of a Lender to arrange its tax affairs in whatever manner it
thinks fit, (ii) oblige any Lender to disclose any information relating to
its tax affairs or any computations in respect thereof or (iii) require
any Lender to take or refrain from taking any action that would prejudice its
ability to benefit from any other credit, relief, remission, repayment or
refund to which it may be entitled.


 


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


 


C.            Capital
Adequacy Adjustment.  In the event
that any Lender shall have determined that the adoption, effectiveness,
phase-in or applicability after the Effective Date of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or any change
therein after the Effective Date or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
such Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency issued
after the Effective Date, has or would have the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such Lender
as a consequence of, or with reference to, such Lender’s Loans or Commitment,
or participations therein or other obligations hereunder with respect to the
Loans to a level below that which such Lender or such controlling corporation


 


41





















 


could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation with
regard to capital adequacy), then from time to time, the Credit Parties shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such controlling corporation on an after-tax basis for such
reduction.  Such Lender shall deliver to
the Credit Parties (with a copy to the Administrative Agent) a written
statement, setting forth in reasonable detail the basis for, and calculation in
reasonable detail of, the additional amounts owed to the Lender under this Section 2.8C,
which statement shall be conclusive and binding upon all parties hereto absent
manifest error.


 


2.9                               Special
Provisions Governing LIBOR Rate Loans.


 


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


 


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


 


B.            Illegality
or Impracticability of LIBOR Rate Loans. 
In the event that on any date any Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with Credit Parties and the
Administrative Agent) that the making, maintaining or continuation of its LIBOR
Rate Loans in Dollars or any Alternative Currency (i) has become unlawful
as a result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the interbank LIBOR market or
the position of such Lender in that market, then, and in any such event, such
Lender shall be an “Affected Lender”
and it shall on that day give notice (by facsimile or by telephone confirmed in
writing) to the Credit Parties and the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each other Lender).  Thereafter (a) (i) if
such LIBOR Rate Loan is denominated in Dollars, it shall be Converted into a
Base Rate Loan and (ii) if such LIBOR Rate Loan is denominated in any
Alternative Currency, it shall be exchanged into an Equivalent amount of
Dollars and be Converted into a Base Rate Loan and (b) the obligation of
the Lenders to make LIBOR Rate


 


42





















 


Loans in the affected currency or to Convert
Loans into LIBOR Rate Loans shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.


 


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


 


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


 


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


 


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


 


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


 


43





















 


Currency Loan and (y) on the fourth Business
Day prior to the date as of which such Dollar Amount is to be determined, for
purposes of any subsequent determination.


 


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


 


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


 


2.11        Defaulting
Lenders.


 


Anything contained herein
to the contrary notwithstanding, in the event that any Lender defaults (a “Defaulting Lender”) in its obligation to fund (a “Funding Default”) any Loan or its portion of any
unreimbursed payment under Section 2.2D (in each case, a “Defaulted Loan”), then (a) during any Default Period
with respect to such Defaulting Lender, such Defaulting Lender shall be deemed
not to be a “Lender” for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Loan Documents;
(b) to the extent permitted by Applicable Law, until such time as the
Default Excess with respect to such Defaulting Lender shall have been reduced
to zero, (i) any voluntary prepayment of the Loans shall, if the
applicable Credit Party so directs at the time of making such voluntary
prepayment, be applied to the Loans of other Lenders as if such Defaulting
Lender had no Loans outstanding and the Credit Exposure of such Defaulting
Lender were zero, and (ii) any mandatory prepayment of the Loans shall, if
the applicable Credit Party so directs at the time of making such mandatory
prepayment, be applied to the Loans of other Lenders (but not to the Loans of
such Defaulting Lender) as if such Defaulting Lender had funded all Defaulted
Loans of such Defaulting Lender, it being understood and agreed that the
applicable Credit Party shall be entitled to retain any portion of any
mandatory prepayment of the Loans that is not paid to such Defaulting Lender
solely as a result of the operation of the provisions of this clause (b); (c) such
Defaulting Lender’s Commitment and outstanding Loans and such Defaulting Lender’s
Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of
calculating the Facility Fee payable to Lenders in respect of any day during
any Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any Facility Fee pursuant to Section 2.6
with respect to such Defaulting Lender’s Commitment in respect of any Default Period
with respect to such Defaulting Lender; and (d) the Total Utilization of
Commitments as at any date of determination shall be calculated as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting
Lender.  No Commitment of any Lender
shall


 


44





















 


be increased or otherwise affected, and, except as
otherwise expressly provided in this Section 2.11, performance by the
Credit Parties of their Obligations shall not be excused or otherwise modified
as a result of any Funding Default or the operation of this Section 2.11.  The rights and remedies against a Defaulting
Lender under this Section 2.11 are in addition to other rights and
remedies which the Credit Parties may have against such Defaulting Lender with
respect to any Funding Default and which the Administrative Agent or any Lender
may have against such Defaulting Lender with respect to any Funding Default.


 


2.12        Removal
or Replacement of a Lender.


 


Anything contained herein
to the contrary notwithstanding, in the event that any Lender shall give notice
to the Credit Parties that such Lender is an Affected Lender or that such
Lender is entitled to receive payments under Section 2.8 or 2.9, if the
circumstances which have caused such Lender to be an Affected Lender or which
entitle such Lender to receive such payments shall remain in effect, and such
Lender shall fail to withdraw such notice within five (5) Business Days
after receipt by such Lender of a written request for such withdrawal from a
Credit Party; then, with respect to each such Lender (the “Terminated
Lender”), the Credit Parties may, by giving written notice to the
Administrative Agent and any Terminated Lender of its election to do so, elect
to cause such Terminated Lender (and such Terminated Lender hereby irrevocably
agrees) to assign its outstanding Loans in full to one or more Eligible
Assignees (each a “Replacement Lender”)
in accordance with the provisions of Section 9.1 for a purchase price
equal to the outstanding principal amount of the Loans assigned and accrued
interest thereon and accrued and theretofore unpaid fees owing to such
Terminated Lender under Section 2.6 through the date of assignment, to be
paid by the Replacement Lender; provided that concurrently with such
assignment, the Credit Parties shall pay any amounts payable to such Terminated
Lender to the date of such assignment pursuant to Sections 2.8 or 2.9 or
otherwise as if it were a prepayment. 
Upon the completion of such assignment and the prepayment of all amounts
owing to any Terminated Lender, such Terminated Lender shall no longer
constitute a “Lender” for purposes hereof; provided that any rights of
such Terminated Lender to indemnification hereunder shall survive as to such
Terminated Lender.


 


2.13        Mitigation.


 


A.            Each
Lender agrees that, as promptly as practicable after the officer of such Lender
responsible for administering the Loans of such Lender becomes aware of the
occurrence of an event or the existence of a condition that would cause such
Lender to become an Affected Lender or that would entitle such Lender to
receive payments under Section 2.8 or 2.9, it will, to the extent not
inconsistent with the internal policies of such Lender and any applicable legal
or regulatory restrictions, use reasonable efforts (i) to make, issue,
fund or maintain the Commitment of such Lender or the affected Loans of such
Lender through another lending office of such Lender, or (ii) take such
other measures as such Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would
cease to exist or the additional amounts which would otherwise be required to
be paid to such Lender pursuant to Section 2.8 or 2.9 would be materially
reduced and if, as determined by such Lender in its sole discretion, the
making, issuing, funding or maintaining of such Commitment or Loans through
such other lending office or in accordance with such other measures, as the
case may be, would not otherwise adversely affect such Commitment or Loans or
the interests of such


 


45





















 


Lender; provided that such Lender will
not be obligated to utilize such other lending office pursuant to this Section 2.13
unless the Credit Parties agree to pay all incremental expenses incurred by
such Lender as a result of utilizing such other lending office as described in
clause (i) above.  A certificate as
to the amount of any such expenses payable by the Credit Parties pursuant to
this Section 2.13 (setting forth in reasonable detail the basis for
requesting such amount and a calculation thereof in reasonable detail)
submitted by such Lender to the Credit Parties (with a copy to the
Administrative Agent) shall be conclusive absent manifest error.


 


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


 


2.14        Increase
in the Aggregate Commitments.


 


A.            The
Borrower may, at any time but in any event not more than twice in any calendar
year prior to the Maturity Date (unless the Administrative Agent otherwise
consents), by notice to the Administrative Agent, request that the aggregate
amount of the Commitments be increased by (i) increasing the amount of the
Commitment of any Lender which has agreed to such increase (any such Lender, an
“Increasing Lender”) and/or (ii) adding
one or more Eligible Assignees as parties hereto with Commitments in an amount
agreed to by such respective Eligible Assignees; provided that (a) the
aggregate amount of any such increase (for all Increasing Lenders and Eligible
Assignees on any particular day) shall be $25,000,000 or a higher integral
multiple of $5,000,000, (b) the amount of the Commitment of any Eligible
Assignee that is not already a Lender shall be not less than $5,000,000, (c) any
such increase shall be effective as of a date that is at least 90 days prior to
the scheduled Maturity Date then in effect (the “Increase
Date”) as specified in the related notice to the Administrative
Agent; (d) in no event shall the aggregate amount of the Commitments at
any time exceed $500,000,000 and (iv) on the date of any request by the
Borrower for a Commitment Increase and on the related Increase Date, the
conditions set forth in Section 3.3 shall be satisfied.


 


B.            On
each Increase Date, each Eligible Assignee that has agreed to participate in
the applicable Commitment Increase (each such Eligible Assignee and each
Eligible Assignee that agrees to an extension of the Maturity Date in
accordance with Section 2.15C, an “Assuming Lender”)
shall become a Lender party to this Agreement as of such Increase Date and the
Commitment of each Increasing Lender shall be increased by the amount agreed
upon by such Lender and the Borrower; provided, however, that the
Administrative Agent shall have received on or before such Increase Date the
following, each dated such date:


 


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


 


46





















 


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


 


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


 


On each Increase Date,
upon fulfillment of the conditions set forth in the immediately preceding
sentence, the Administrative Agent shall notify the Lenders (including each
Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City
time), by facsimile, of the occurrence of the Commitment Increase to be
effected on such Increase Date and shall record in the Register the relevant
information with respect to each Increasing Lender and each Assuming Lender on
such date.  Each Increasing Lender and
each Assuming Lender shall, before 2:00 P.M. (New York City time) on the
Increase Date, make available to the Administrative Agent at the Funding and
Payment Office, in same day funds, in the case of such Assuming Lender, an
amount equal to such Assuming Lender’s ratable portion of the Loans then
outstanding (calculated based on its Commitment as a percentage of the
aggregate Commitments outstanding after giving effect to the relevant Commitment
Increase) and, in the case of such Increasing Lender, an amount equal to the
excess of (i) such Increasing Lender’s ratable portion of the Loans then
outstanding (calculated based on its Commitment as a percentage of the
aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase) over (ii) such Increasing Lender’s ratable portion of
the Loans then outstanding (calculated based on its Commitment (without giving
effect to the relevant Commitment Increase) as a percentage of the aggregate
Commitments (without giving effect to the relevant Commitment Increase).  After the Administrative Agent’s receipt of
such funds from each such Increasing Lender and each such Assuming Lender, the
Administrative Agent will promptly thereafter cause to be distributed like
funds to the other Lenders in an amount to each other Lender such that the
aggregate amount of the outstanding Loans owing to each Lender after giving
effect to such distribution equals such Lender’s ratable portion of the aggregate
Loans then outstanding (calculated based on its Commitment as a percentage of
the aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase).


 


2.15        Extension
of Maturity Date.


 


A.            At
least 45 days but not more than 60 days prior to the first or second
anniversary of the Effective Date (or both), the Borrower, by written notice to
the Administrative Agent, may request an extension of the Maturity Date in
effect at such time by one year from its then scheduled expiration.  The Administrative Agent shall promptly notify
each Lender of such request, and each Lender shall in turn, in its sole
discretion, not later than 20 days prior to such anniversary date, notify the
Borrower and the Administrative Agent in writing as to whether such Lender will
consent to such extension.  If any Lender
shall fail to notify the Administrative Agent and the Borrower in writing of
its consent to any such request for extension of the Maturity Date at least 20
days prior to the applicable anniversary date, such Lender shall be deemed to
be a Non-Consenting Lender with respect to such request.  The Administrative Agent shall notify the
Borrower not later than 15 days prior to the applicable anniversary date of the
decision of the Lenders regarding the Borrower’s request for an extension of
the Maturity Date.


 


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B.            If
all the Lenders consent in writing to any such request in accordance with Section 2.15A,
the Maturity Date in effect at such time shall, effective as at the Maturity
Date (the “Extension Date”), be extended for
one year; provided that on each Extension Date the conditions set forth
in Section 3.3 shall be satisfied. 
If less than all of the Lenders consent in writing to any such request in
accordance with Section 2.15A, the Maturity Date in effect at such time
shall, effective as at the applicable Extension Date and subject to Section 2.15D,
be extended as to those Lenders that so consented (each a “Consenting
Lender”) but shall not be extended as to any other Lender (each a “Non-Consenting Lender”). 
To the extent that the Maturity Date is not extended as to any Lender
pursuant to this Section 2.15 and the Commitment of such Lender is not
assumed in accordance with Section 2.15C on or prior to the applicable
Extension Date, the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Maturity Date without any
further notice or other action by the Borrower, such Lender or any other
Person; provided that such Non-Consenting Lender’s rights under Sections
2.8 and 9.3, and its obligations under Section 10.4, shall survive the
Maturity Date for such Lender as to matters occurring prior to such date.  It is understood and agreed that no Lender
shall have any obligation whatsoever to agree to any request made by the
Borrower for any requested extension of the Maturity Date.


 


C.            If
less than all of the Lenders consent to any such request pursuant to Section 2.15A,
the Borrower may arrange for one or more Consenting Lenders or other Eligible
Assignees as Assuming Lenders to assume, effective as of the Extension Date,
any Non-Consenting Lender’s Commitment and all of the obligations of such
Non-Consenting Lender under this Agreement thereafter arising, without recourse
to or warranty by, or expense to, such Non-Consenting Lender; provided, however,
that the amount of the Commitment of any such Assuming Lender as a result of
such substitution shall in no event be less than $5,000,000 unless the amount
of the Commitment of such Non-Consenting Lender is less than $5,000,000, in
which case such Assuming Lender shall assume all of such lesser amount; and provided
further that:


 


(i)            any
such Consenting Lender or Assuming Lender shall have paid to such
Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on, the
outstanding Loans, if any, of such Non-Consenting Lender plus (B) any
accrued but unpaid facility fees owing to such Non-Consenting Lender as of the
effective date of such assignment;


 


(ii)           all
additional costs reimbursements, expense reimbursements and indemnities payable
to such Non-Consenting Lender, and all other accrued and unpaid amounts owing
to such Non-Consenting Lender hereunder, as of the effective date of such
assignment shall have been paid to such Non-Consenting Lender; and


 


(iii)          with
respect to any such Assuming Lender, the applicable processing and recordation
fee required under Section 9.15B for such assignment shall have been paid;


 


provided
further that such Non-Consenting Lender’s rights under Sections 2.8 and
9.3, and its obligations under Section 10.4, shall survive such
substitution as to matters occurring prior to the date of substitution.  At least three Business Days prior to any
Extension Date, (A) each such Assuming Lender, if any, shall have
delivered to the Borrower and the Administrative Agent an


 


48





















 


Assumption Agreement, duly executed by such Assuming Lender, such
Non-Consenting Lender, the Borrower and the Administrative Agent, (B) any
such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Administrative Agent as to the increase in
the amount of its Commitment and (C) each Non-Consenting Lender being
replaced pursuant to this Section 2.15 shall have delivered to the
Administrative Agent any Note or Notes held by such Non-Consenting Lender.  Upon the payment or prepayment of all amounts
referred to in clauses (i), (ii) and (iii) of the immediately
preceding sentence, each such Consenting Lender or Assuming Lender, as of the
Extension Date, will be substituted for such Non-Consenting Lender under this
Agreement and shall be a Lender for all purposes of this Agreement, without any
further acknowledgment by or the consent of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.


 


D.            If
(after giving effect to any assignments or assumptions pursuant to Section 2.15C)
Lenders having Commitments equal to at least 50% of the Commitments in effect
immediately prior to the Extension Date consent in writing to a requested
extension (whether by execution or delivery of an Assumption Agreement or
otherwise) not later than one Business Day prior to such Extension Date, the
Administrative Agent shall so notify the Borrower, and, subject to the
satisfaction of the conditions in Section 3.3, the Maturity Date then in
effect shall be extended for the additional one-year period as described in Section 2.15A,
and all references in this Agreement, and in the Notes, if any, to the “Maturity
Date” shall, with respect to each Consenting Lender and each Assuming Lender
for such Extension Date, refer to the Maturity Date as so extended.  Promptly following each Extension Date, the
Administrative Agent shall notify the Lenders (including each Assuming Lender)
of the extension of the scheduled Maturity Date in effect immediately prior
thereto and shall thereupon record in the Register the relevant information
with respect to each such Consenting Lender and each such Assuming Lender.


 


SECTION 3.         CONDITIONS PRECEDENT


 


3.1          Conditions
to Effectiveness.


 


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


 


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


 


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


 


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


 


49





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


E.             Authorizations
and Consents.


 


(i)            The
Borrower shall have obtained all Governmental Authorizations and all consents
of other Persons, in each case that are necessary in connection with the
transactions


 


50





















 


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


 


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


 


F.             Material
Adverse Effect.  Since December 31,
2004, there shall not have occurred a Material Adverse Effect.


 


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


 


3.2          Conditions
Precedent to each Credit Extension.


 


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


 


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


 


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


 


C.            Representations
and Warranties.  The representations
and warranties contained herein (excluding, except on the Effective Date, the
representations and warranties made in the


 


51





















 


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


 


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


 


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


 


3.3          Conditions
Precedent to each Commitment Increase and Extension Date.


 


Each Commitment Increase
and each extensions of the Maturity Date are subject to the satisfaction of the
following conditions:


 


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


 


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


 


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


 


SECTION 4.         REPRESENTATIONS AND WARRANTIES


 


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


 


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


 


A.            Organization
and Powers.  Such Credit Party and
each of its Subsidiaries is duly organized, validly existing and in good
standing, as applicable, under the laws of its jurisdiction of
organization.  Such Credit Party and each
of its Subsidiaries has all requisite power and authority to own, lease and
operate its properties, to carry on its business as now conducted and


 


52





















 


as proposed to be conducted, to enter into
the Loan Documents to which it is a party and to carry out the transactions
contemplated thereby.


 


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


 


4.2          Authorization
of Borrowing, etc.


 


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


 


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


 


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


 


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


 


4.3          Disclosure.


 


No representation or
warranty of such Credit Party or any of its Subsidiaries contained in any Loan
Document or in any other document, certificate or written statement furnished
to any


 


53





















 


Agent or any Lender by or on behalf of such Credit
Party or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to such Credit Party or any of its
Subsidiaries in the case of any document not furnished by any of them)
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made.  Any projections and pro forma financial
information contained in such materials are based upon good faith estimates and
assumptions believed by the applicable Credit Party to be reasonable at the
time made, it being recognized by the Agents and the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results.


 


4.4          Financial
Condition.


 


The Borrower has
heretofore delivered to the Administrative Agent the audited consolidated
balance sheet of the Borrower and its Subsidiaries as at December 31, 2004
and the related audited consolidated statements of income, stockholders’ equity
and cash flows of the Borrower for the Fiscal Year then ended, together with
all related notes and schedules thereto. 
All such statements were prepared in conformity with GAAP and fairly present,
in all material respects, the financial position of the entities described in
such financial statements as at the respective dates thereof and the results of
operations and cash flows of the entities described therein for each of the
periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end
adjustments.  Neither the Borrower nor
any of its Subsidiaries has any contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not
reflected in the foregoing financial statements or the notes thereto and which
in any such case could reasonably be expected to have a Material Adverse
Effect.


 


4.5          No
Material Adverse Change.


 


Since December 31,
2004, no event or change has occurred that has caused or evidences, or could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.


 


4.6          Intellectual
Property Matters.


 


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


 


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operations except to the extent any such revocation,
termination, or infringement could not reasonably be expected to have a
Material Adverse Effect.


 


4.7          No
Litigation; Compliance with Laws.


 


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


 


4.8          No
Default.


 


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


 


4.9          Governmental
Regulation.


 


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


 


4.10        Securities
Activities.


 


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


 


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4.11        Employee
Benefit Plans.


 


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


 


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


 


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


 


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


 


4.12        Environmental
Protection.


 


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


 


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


 


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


 


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


 


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


 


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


 


4.13        Pari
Passu.


 


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


 


4.14        Restrictions.


 


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


 


SECTION 5.         AFFIRMATIVE COVENANTS


 


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


 


5.1          Financial
Statements and Other Reports.


 


The Borrower will deliver
to Administrative Agent:


 


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


 


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


 


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


 


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


 


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


 


58





















 


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


 


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


 


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


 


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


 


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


 


(x)            Public
Filings:  promptly after the same
become publicly available, copies of all periodic and other reports, proxy
statements and other materials filed by the Borrower or any of its Subsidiaries
with the Securities and Exchange Commission, or any Governmental


 


59





















 


Authority succeeding to any or all of the
functions of the Securities and Exchange Commission, or distributed by the
Borrower to its shareholders generally; and


 


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


 


5.2          Books
and Records.


 


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


 


5.3          Existence.


 


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


 


5.4          Insurance.


 


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


 


5.5          Payment
of Taxes and Claims.


 


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


 


60





















 


no such Tax need be paid (a) if it is being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as adequate reserve or other appropriate
provision, as shall be required in conformity with GAAP shall have been made
therefor or (b) if the aggregate amount of all unpaid Taxes that have not
been paid by the Borrower and its Subsidiaries (excluding amounts being
contested as provided in clause (a)) does not exceed $5,000,000 and could not
reasonably be expected to have a Material Adverse Effect.  The Borrower will not, nor will it permit any
of its Subsidiaries to, file or consent to the filing of any consolidated
income Tax return with any Person (other than the Borrower or any of its
Subsidiaries).


 


5.6          Payment
and Performance of Obligations.


 


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


 


5.7          Maintenance
of Properties.


 


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


 


5.8          Compliance
with Laws.


 


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


 


5.9          Use
of Proceeds.


 


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


 


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


 


5.10        Claims
Pari Passu.


 


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


 


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5.11        Further
Assurances.


 


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


 


SECTION 6.         NEGATIVE COVENANTS


 


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


 


6.1          Liens.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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6.2          Indebtedness.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(viii)        Indebtedness
(including guarantees of any such Indebtedness) of a Subsidiary located in a
country other than the U.S.; provided that the outstanding principal
amount of all Indebtedness permitted by this clause (viii) (without double
counting guarantees of any such Indebtedness) shall not at any time exceed
$25,000,000;


 


(ix)           the
Obligations; and


 


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


 


6.3          Acquisitions.


 


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


 


6.4          Restrictions
on Subsidiary Distributions.


 


Except as provided
herein, the Borrower shall not, and shall not permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary of the
Borrower to (a) pay dividends or make any other distributions on any of
such Subsidiary’s Capital Stock owned by the Borrower or any other Subsidiary
of the Borrower, (b) repay or prepay any Indebtedness owed by such
Subsidiary to the Borrower or any other Subsidiary of the Borrower, (c) make
loans or advances to the Borrower or any other Subsidiary of the Borrower, or (d) transfer
any of its property or assets to the Borrower or any other Subsidiary of the
Borrower, other than restrictions (i) existing under this Agreement, (ii) in
agreements evidencing Indebtedness pursuant to Capital Leases permitted by Section 6.2
that impose restrictions on the property so acquired (except that such
agreements shall not in any manner limit the ability of the Borrower or any
Subsidiary of the Borrower to pay dividends or make any other distribution), (iii) by
reason of customary provisions restricting assignments, subletting or other
transfers contained in leases, licenses, Joint Venture agreements and similar
agreements entered into in the ordinary course of business, (iv) by reason
of customary subordination provisions in any guaranty or similar arrangement
(including any arrangement of the type described in clause (vii), (viii) or
(ix) of the definition of “Indebtedness” or (v) imposed on a
Subsidiary pursuant to an agreement which has been entered into in connection
with the disposition of all of substantially all of the capital stock or assets
of such Subsidiary.


 


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6.5          Restricted
Payments.


 


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


 


6.6          Restriction
on Fundamental Changes and Asset Sales.


 


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


 


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


 


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


 


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


 


6.7          Conduct
of Business.


 


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


 


6.8          Fiscal
Year.


 


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


 


6.9          Other
Indebtedness.


 


The Borrower shall not,
and shall not permit any of its Subsidiaries to, amend or otherwise change the
terms of any Subordinated Indebtedness, or make any optional payment or any
payment pursuant thereto, if the effect of such amendment or change is to
increase the interest rate on such Subordinated Indebtedness, change (to
earlier dates) any dates upon which


 


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payments of principal or interest are due thereon,
change any event of default or condition to an event of default with respect
thereto (other than to eliminate any such event of default or increase any
grace period related thereto), change the redemption, prepayment or defeasance
provisions thereof, change the subordination provisions of such Subordinated
Indebtedness (or of any guaranty thereof), or if the effect of such amendment
or change, together with all other amendments or changes made, is to increase
materially the obligations of the obligor thereunder or to confer any
additional rights on the holders of such Subordinated Indebtedness (or a
trustee or other representative on their behalf) which would be adverse to any
Credit Party or the Lenders.


 


6.10        Transactions
with Shareholders and Affiliates.


 


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


 


6.11        Financial
Covenants.


 


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


 


B.            Leverage
Ratio.  The Borrower shall not permit
the Leverage Ratio as of the last day of any Fiscal Quarter, for the four
Fiscal Quarter period then ended, to exceed 3.25 to
1.00.


 


C.            Certain
Calculations.  With respect to any
period during which a Permitted Acquisition or an Asset Sale has occurred
(each, a “Subject Transaction”),
for purposes of determining compliance with the financial covenants set forth
in this Section 6.11, Consolidated Adjusted EBIT and Consolidated Adjusted
EBITDA shall be calculated with respect to such period on a pro forma basis
using the historical audited financial statements of any business so acquired
or to be acquired or sold or to be sold and the consolidated financial
statements of the Borrower and its Subsidiaries which shall be reformulated as
if such Subject Transaction, and any Indebtedness incurred or repaid in
connection therewith, had been consummated or incurred or repaid at the
beginning of such period.


 


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6.12        Interest
Rate Agreements and Currency Agreements.


 


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


 


SECTION 7.         GUARANTY


 


7.1          Guaranty
of the Obligations.


 


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


 


7.2          Payment
by the Borrower.


 


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


 


7.3          Liability
of Guarantor Absolute.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


7.4                               Waivers
by Guarantor.


 


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


 


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


 


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


 


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


 


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7.6                               Subordination
of Other Obligations.


 


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


 


7.7                               Continuing
Guaranty.


 


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


 


7.8                               Authority
of Credit Parties.


 


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


 


7.9                               Financial
Condition of Credit Parties.


 


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


 


7.10                        Bankruptcy,
etc.


 


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


 


72





















 


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


 


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


 


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


 


SECTION 8.                            EVENTS OF DEFAULT


 


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


 


8.1                               Failure
to Make Payments When Due.


 


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


 


8.2                               Default
in Other Agreements.


 


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


 


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


 


8.3                               Breach
of Certain Covenants.


 


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


 


8.4                               Breach
of Representation or Warranty.


 


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


 


8.5                               Other
Defaults Under Loan Documents.


 


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


 


8.6                               Involuntary
Bankruptcy; Appointment of Receiver, etc.


 


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


 


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8.7                               Voluntary
Bankruptcy; Appointment of Receiver, etc.


 


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


 


8.8                               Judgments
and Attachments.


 


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


 


8.9                               Dissolution.


 


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


 


8.10                        Employee
Benefit Plans.


 


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


 


8.11                        Change
in Control.


 


A Change of Control shall
occur; or


 


8.12                        Repudiation
of Obligations.


 


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


 


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


 


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


 


SECTION 9.                            MISCELLANEOUS


 


9.1                               Assignments
and Participations in Loans and Letters of Credit.


 


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


 


B.            Requirements.  The assigning Lender and the assignee thereof
shall execute and deliver to the Administrative Agent an Assignment Agreement,
together with (i) a processing


 


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and recordation fee of $3,500, and (ii) such
forms, certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver to Administrative Agent pursuant to Section 2.8B(iii).


 


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


 


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


 


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


 


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such assigning Lender, with appropriate
insertions, to evidence the Loans of the assignee and/or the assigning Lender.


 


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


 


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


 


9.2                               Expenses.


 


Whether or not the
transactions contemplated hereby shall be consummated, the Credit Parties agree
to pay promptly (i) all the actual and reasonable costs and out-of-pocket
expenses of preparation of the Loan Documents; (ii) all the costs of
furnishing all opinions by counsel for the Credit Parties; (iii) the
reasonable fees, out-of-pocket expenses and disbursements of a single U.S.
counsel, a special Canada counsel and a special Ireland counsel to the Lead
Arrangers and


 


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


 


9.3                               Indemnity.


 


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


 


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


 


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


 


9.4                               Exception
for Subsidiary Borrowers.


 


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


 


9.5                               Set-Off.


 


In addition to any rights
now or hereafter granted under applicable law and not by way of limitation of
any such rights, upon the occurrence and during the continuance of any Event of
Default, each of the Agents and each Lender (and each of their respective
Affiliates) is hereby authorized by the Credit Parties at any time or from time
to time subject, except in the case of an Event of Default under Section 8.1,
8.6 or 8.7, to the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed), without notice to the Credit Parties or to
any other Person, any such notice being hereby expressly waived, to set-off and
to appropriate and to apply any and all deposits (general or special, including
Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by such Agent or such Lender (or such Affiliate), and any of
their respective affiliates, as the case may be, to or for the credit or the
account of any Credit Party against and on account of the obligations and
liabilities of any Credit Party to such Agent or such Lender under this
Agreement and the other Loan Documents, including all claims of any nature or
description arising out of or connected with this Agreement or any other Loan
Document, irrespective of whether or not (i) such Agent or such Lender
shall have made any demand hereunder or (ii) the principal of or the
interest on the Loans or any other amounts due hereunder shall have become due
and payable pursuant to Section 9 and although said Obligations, or any of
them, may be contingent or unmatured.


 


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9.6                               Amendments
and Waivers.


 


No amendment,
modification, termination or waiver of any provision of this Agreement or of
any other Loan Document, or consent to any departure by the Credit Parties
therefrom, shall in any event be effective without the written concurrence of
the Requisite Lenders; provided that no amendment, modification,
termination, waiver or consent shall, without the consent of each Lender:  (i) except as provided in Section 2.15,
extend the scheduled final maturity of any Loan or Note; (ii) waive,
reduce or postpone any scheduled repayment (but not prepayment); (iii) reduce
the rate of interest on any Loan or any fee or other amount payable hereunder; (iv) extend
the time for payment of any such interest, fees or other amounts; (v) extend
the stated expiration date of any Letter of Credit beyond the Maturity Date; (vi) reduce
the principal amount of any Loan; (vii) amend, modify, terminate or waive
any provision of this Section 9.6; (viii) amend, modify or replace
the definition of “Requisite Lenders” or “Pro Rata Share”, or any provision of
this Agreement which would alter the pro rata
sharing of payments required hereunder; (ix) consent to the assignment or
transfer by any Credit Party of any of its rights and obligations under this
Agreement; or (x) release the Guarantor from its Obligations under the
Guaranty; provided  further that no such amendment, modification,
termination or waiver of any provision of the Loan Documents, or consent to any
departure by any Credit Party therefrom, shall: 
(1) increase the Commitments of any Lender over the amount thereof
then in effect without the consent of such Lender; or (2) amend, modify,
terminate or waive any provision of this Agreement as the same applies to the
rights or obligations of any Agent, in each case without the consent of such
Agent.  The Administrative Agent may, but
shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender.  Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was
given.  No notice to or demand on any
Credit Party in any case shall entitle such Credit Party to any other or
further notice or demand in similar or other circumstances.


 


9.7                               Independence
of Covenants.


 


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


 


9.8                               Notices.


 


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


 


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B.            Intralinks.


 


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


 


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


 


(iii)         THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”.  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF
THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN
THE COMMUNICATIONS.  NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE PLATFORM. 
IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR
ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO THE
CREDIT PARTIES, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY
KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING
OUT OF THE CREDIT PARTIES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF
COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY
AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.


 


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


 


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


 


9.9                               Survival
of Representations, Warranties and Agreements.


 


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


 


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


 


9.10                        Failure
or Indulgence Not Waiver; Remedies Cumulative.


 


No failure or delay on
the part of any Lead Arranger, any Agent or any Lender in the exercise of any
power, right or privilege hereunder or under any other Loan Document shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof
or of any other power, right or privilege. 
The rights, powers and remedies given to each Lead Arranger, each Agent
and each Lender hereby are cumulative and shall be in addition to and
independent of all rights, powers and remedies existing by virtue of any
statute or rule of law or in any other Loan Document.  Any forbearance or failure to exercise, and
any delay in exercising, any right, power or remedy hereunder shall


 


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not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of
any such right, power or remedy.


 


9.11                        Marshalling;
Payments Set Aside.


 


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


 


9.12                        Severability.


 


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


 


9.13                        Headings.


 


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


 


9.14                        Applicable
Law.


 


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


 


9.15                        Successors
and Assigns.


 


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


 


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9.16                        Consent
to Jurisdiction and Service of Process.


 


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


 


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


 


(II)           WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS;


 


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


 


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


 


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


 


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


 


9.17                        Waiver
of Jury Trial.


 


EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS
BEING ESTABLISHED.  The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including contract claims, tort claims, breach of duty claims and
all other common law and statutory claims. 
Each party hereto acknowledges that this waiver is a material inducement
to enter into a business relationship, that


 


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each has already relied on this waiver in entering
into this Agreement, and that each will continue to rely on this waiver in
their related future dealings.  Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel.  THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 9.17
AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER.  In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.


 


9.18                        Confidentiality.


 


Each Agent and Lender
shall hold all confidential, proprietary or non-public information regarding
the Credit Parties and their respective Subsidiaries and their respective
businesses which has been identified as confidential by any such Credit Party
and obtained pursuant to the requirements of this Agreement in accordance with
such Agent’s or Lender’s customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices, it being understood and agreed by the Credit Parties that in any
event each Lender may make disclosures (i) to Affiliates of such Agent or
Lender and the directors, officers, employees, agents, advisors and other
representatives of such Agent or Lender and their Affiliates (and to other
persons authorized by an Agent or Lender to organize, present or disseminate
such information in connection with disclosures otherwise made in accordance
with this Section 9.18); (ii) reasonably required by any bona fide or
potential assignee, transferee or participant in connection with the
contemplated assignment, transfer or participation by any Lender of its Loans
or any interest therein; provided that, prior to any disclosure, such
rating agency shall undertake in writing to preserve the confidentiality of any
confidential information relating to the Credit Parties or their Subsidiaries
received by it from any of the Agents or any Lender; (iv) required or
requested by any Governmental Authority or representative thereof; provided
that unless specifically prohibited by applicable law, court order or similar
regulatory process, each Agent and Lender shall make reasonable efforts to
notify the Credit Parties of any request by any Governmental Authority or
representative thereof (other than any such request in connection with any
examination of the financial condition or other routine examination of such
Agent or Lender by such Governmental Authority) for disclosure of any such non-public
information prior to disclosure of such information; (v) to any other
party hereto; (vi) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder; (vii) to any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the Credit
Parties and their Obligations; (viii) with the consent of the applicable
Credit Party or (ix) to the extent such information (x) becomes publicly
available other than as a result of a breach of this Section 9.18 or (y)
becomes available to any Agent, any Lender or their respective Affiliates on a
nonconfidential basis from a source other than the Credit Parties so long as
such Agent, such Lender or such Affiliate does not have knowledge that such
source has an obligation to any


 


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Credit Party to keep such information confidential; provided
that in no event shall any Agent or Lender be obligated or required to return
any materials furnished by any Credit Party or any of its Subsidiaries.


 


9.19                        Ratable
Sharing.


 


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


 


9.20                        Counterparts;
Effectiveness.


 


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


 


9.21                        Obligations
Several; Independent Nature of Lenders’ Rights.


 


The obligations of the
Lenders hereunder are several and no Lender shall be responsible for the
obligations or Commitment of any other Lender hereunder.  Nothing contained herein or


 


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in any other Loan Document, and no action taken by the
Lenders pursuant hereto or thereto, shall be deemed to constitute the Lenders
as a partnership, an association, a joint venture or any other kind of
entity.  The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and each Lender
shall be entitled to protect and enforce its rights arising out hereof and it
shall not be necessary for any other Lender to be joined as an additional party
in any proceeding for such purpose.


 


9.22                        Usury
Savings Clause.


 


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


 


9.23                        Judgment
Currency.


 


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


 


88










 













 


cause of action solely for the purpose of recovering
in the applicable Currency the amount, if any, by which such actual receipt
shall fall short of the full amount of the currency expressed to be payable
pursuant to the applicable Loan Document.


 


9.24                        Termination
of Existing Credit Agreement.


 


The Borrower
and each of the Lenders that is also a “Lender” party to the Credit
Agreement and Guaranty dated as of April 30, 2002, as amended, among the
Borrower, the lenders party thereto and Citicorp North America, Inc., as
administrative agent (the “Existing
Credit Agreement”), agrees that the “Commitments” as defined in the
Existing Credit Agreement shall be terminated in their entirety on the
Effective Date in accordance with the terms thereof.  Each of such Lenders waives any requirement
of notice of such termination pursuant to Article II of the Existing
Credit Agreement.


 


SECTION 10.                     AGENTS


 


10.1                        Appointment.


 


ABN AMRO Bank and MSSF
are hereby appointed as Syndication Agents hereunder, and each Lender hereby authorizes
the Syndication Agents to act as its agents in accordance with the terms of
this Agreement and the other Loan Documents. 
Bank of America, N.A. and Wachovia Bank, National Association are hereby
appointed as Documentation Agents hereunder, and each Lender hereby authorizes
the Documentation Agents to act as its agents in accordance with the terms of
this Agreement and the other Loan Documents. 
Citicorp is hereby appointed by each Lender as the Administrative Agent
hereunder and under the other Loan Documents and each Lender hereby authorizes
the Administrative Agent to act as its agent in accordance with the terms of
this Agreement and the other Loan Documents. 
Each Agent hereby agrees to act upon the express conditions contained in
this Agreement and the other Loan Documents, as applicable.  The provisions of this Section 10 are
solely for the benefit of the Agents and the Lenders, and the Credit Parties
shall have no rights as a third party beneficiary of any of the provisions
thereof.  In performing its functions and
duties under this Agreement, each of the Agents shall act solely as an agent of
the Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for any Credit
Party or any of their respective Subsidiaries.


 


10.2                        Powers
and Duties; General Immunity.


 


A.            Powers;
Duties Specified.  Each Lender
irrevocably authorizes each Agent to take such action on such Lender’s behalf
and to exercise such powers, rights and remedies hereunder and under the other
Loan Documents as are specifically delegated or granted to such Agent by the
terms hereof and thereof, together with such powers, rights and remedies as are
reasonably incidental thereto.  Each
Agent shall have only those duties and responsibilities that are expressly
specified in this Agreement and the other Loan Documents.  Each Agent may exercise such powers, rights
and remedies and perform such duties by or through its agents or
employees.  No Agent shall have, by reason
of this Agreement or any of the other Loan Documents, a fiduciary relationship
in respect of any Lender; and nothing in this Agreement or any of the other
Loan Documents, expressed or implied, is intended to or shall be so construed
as


 


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to impose upon any Agent any obligations in
respect of this Agreement or any of the other Loan Documents except as
expressly set forth herein or therein. 
Anything herein to the contrary notwithstanding, none of the Lead
Arrangers or Documentation Agents listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as a Lender or the
Issuing Bank hereunder.


 


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


 


C.            Exculpatory
Provisions.  No Agent nor any of its
officers, partners, directors, employees or agents shall be liable to the
Lenders for any action taken or omitted by any Agent under or in connection
with any of the Loan Documents except to the extent caused by such Agent’s
gross negligence or willful misconduct. 
Each Agent shall be entitled to refrain from any act or the taking of
any action (including the failure to take an action) in connection with this
Agreement or any of the other Loan Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from the
Requisite Lenders (or such other the Lenders as may be required to give such
instructions under Section 9.6) and, upon receipt of such instructions
from the Requisite Lenders (or such other Lenders, as the case may be), such
Agent shall be entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance with such
instructions.  Without prejudice to the
generality of the foregoing, (i) each of Agent shall be entitled to rely,
and shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or
sent by the proper Person or Persons, and shall be entitled to rely and shall
be protected in relying on opinions and judgments of attorneys (who may be
attorneys for the Credit Parties and their Subsidiaries), accountants, experts
and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against any Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of


 


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the other Loan Documents in accordance with
the instructions of the Requisite Lenders (or such other Lenders as may be
required to give such instructions under Section 9.6).


 


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


 


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


 


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


 


10.4                        Right
to Indemnity.


 


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


 


91





















 


impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.


 


10.5                        Successor
Administrative Agent.


 


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


 


10.6                        Agents
Under Guaranty.


 


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


 


10.7                        Acknowledgment
of Potential Related Transactions.


 


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


 


SECTION 11.                     SUBSIDIARY BORROWERS


 


11.1                        Joinder
of Subsidiary Borrowers.


 


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


 


92





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(v)           a
good standing certificate or certificate of existence, as applicable, from the
Secretary of State (or similar official) from the jurisdiction of formation of
such Subsidiary Borrower, certified as of the Effective Date (or a recent date
prior to the Effective Date) (the matters referenced in subsections 11C(ii)-(v) to
be addressed in a secretary’s certificate substantially in the form of Exhibit VII);


 


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


 


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


 


93





















 


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


 


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


 


F.             Authorizations
and Consents.


 


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


 


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


 


11.2                        Termination
of Status as Subsidiary Borrower.


 


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


 


[Remainder
of page intentionally left blank]


 


94





















 


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


 


 


	
   

  	
  HOSPIRA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lori O. Carlson

  	
   

  
	
   

  	
  Name: Lori O. Carlson

  
	
   

  	
  Title:   Vice
  President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  275 N. Field Road

  
	
   

  	
  Lake Forest, IL 60045

  
	
   

  	
  Attention:

  	
  Vice President and Treasurer

  	
   

  
	
   

  	
  Tel:

  	
  224-212-2000

  
	
   

  	
  Fax:

  	
  224-212-3284

  
	
   

  	
  email: lori.carlson@hospira.com

  
							



 





















 


	
   

  	
  CITICORP NORTH AMERICA, INC.,

  
	
   

  	
  as Lender and Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carolyn Kee

  	
   

  
	
   

  	
  Name: Carolyn Kee

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  390 Greenwich Street

  
	
   

  	
  New York, NY 10013

  
	
   

  	
  Attention: William E. Clark

  
	
   

  	
  Tel:

  	
  (212) 816-8183

  
	
   

  	
  Fax:

  	
  (212) 816-8051

  
	
   

  	
  email: william.e.clark@citigroup.com

  
					



 


2





















 


	
   

  	
  ABN AMRO BANK N.V., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric Oppenheimer

  	
   

  
	
   

  	
  Name: Eric Oppenheimer

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ruth E. Molina

  	
   

  
	
   

  	
  Name: Ruth E. Molina

  
	
   

  	
  Title: Associate

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  208 South Lasalle Street

  
	
   

  	
  Suite 1500

  
	
   

  	
  Chicago, IL 60604-1003

  
	
   

  	
  Attention: Loan Administration

  
	
   

  	
  Tel:

  	
  (312) 992-5150

  
	
   

  	
  Fax:

  	
  (312) 992-5155

  
					



 


3





















 


	
   

  	
  MORGAN STANLEY BANK, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Twenge

  	
   

  
	
   

  	
  Name: David Twenge

  
	
   

  	
  Title:   Vice
  President

  Morgan Stanley Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  1633 Broadway, 25th Floor

  
	
   

  	
  New York, NY 10019

  
	
   

  	
  Attention: James Morgan/Larry Benison

  
	
   

  	
  Tel:

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

  
	
   

  	
  Fax:

  	
  (212) 537-1867 / 1866

  
	
   

  	
  email:

  
					



 


4





















 


	
   

  	
  BANK OF AMERICA, N.A., as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ B. Kenneth Burton, Jr.

  	
   

  
	
   

  	
  Name: B. Kenneth Burton, Jr.

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  1850 Gateway Blvd.

  
	
   

  	
  Concord, CA 94520-3282

  
	
   

  	
  Attention: Pamela S. Greer-Tillman

  
	
   

  	
  Tel:

  	
  (925) 675-8453

  
	
   

  	
  Fax:

  	
  (888) 969-2786

  
	
   

  	
  email:

  
					



 


5





















 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION, as

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Nelson

  	
   

  
	
   

  	
  Name: Richard Nelson

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  201 South College Street CP9, NC 1183

  
	
   

  	
  Charlotte, NC 28288

  
	
   

  	
  Attention: Dianne Taylor

  
	
   

  	
  Tel:

  	
  (704) 715-1876

  
	
   

  	
  Fax:

  	
  (704) 715-0094

  
	
   

  	
  email:

  
					



 


6





















 


	
   

  	
  BANK OF MONTREAL, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph W. Linder

  	
   

  
	
   

  	
  Name: Joseph W. Linder

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  115 South LaSalle Street, 12 West

  
	
   

  	
  Chicago, IL 60603

  
	
   

  	
  Attention: Joseph W. Linder

  
	
   

  	
  Tel:

  	
  (312) 750-3784

  
	
   

  	
  Fax:

  	
  (312) 750-6057

  
	
   

  	
  email: joseph.linder@bmo.com

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF MONTREAL IRELAND PLC,
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. L. Ebdon

  	
   

  
	
   

  	
  Name: A. L. Ebdon

  
	
   

  	
  Title: General Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  Segrave House

  
	
   

  	
  19/20 Earlsfort Terrace

  
	
   

  	
  Dublin 2 Ireland

  
	
   

  	
   

  
	
   

  	
  Attention: Finbarr Farrell

  
	
   

  	
  Tel: (353 1) 634 4373

  
	
   

  	
  Fax: (353 1) 662 9301

  
	
   

  	
  email: finbarr.farrell@bmo.com

  
							



 


7





















 


	
   

  	
  THE  BANK OF
  TOKYO-MITSUBISHI, LTD.,

  
	
   

  	
  CHICAGO BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tsuguyuki Umene

  
	
   

  	
  Name: Tsuguyuki Umene

  
	
   

  	
  Title: Deputy General Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  The Bank of Tokyo-Mitsubishi, Ltd.

  
	
   

  	
  Chicago Branch

  
	
   

  	
  227 W. Monroe St., Suite 2300

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
  Attention: Corporate Banking—Ms. Diane Tkach

  
	
   

  	
  Tel:

  	
  (312) 696-4663

  
	
   

  	
  Fax:

  	
  (312) 696-4535

  
	
   

  	
  email: dtkach@btmna.com

  
				



 


8





















 


	
   

  	
  BNP PARIBAS, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy King

  	
   

  
	
   

  	
  Name: Timothy King

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNP PARIBAS, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher S. Grumboski

  	
   

  
	
   

  	
  Name: Christopher S. Grumboski

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  919 Third Avenue

  
	
   

  	
  3rd Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
  Attention: Gabriel Candamo

  
	
   

  	
  Tel:

  	
  (212) 471-6626

  
	
   

  	
  Fax:

  	
  (212) 471-6695

  
	
   

  	
  email:

  
					



 


9





















 


	
   

  	
  SUNTRUST BANK., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W. Brooks Hubbard

  	
   

  
	
   

  	
  Name: W. Brooks Hubbard

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  200 South Orange Avenue, MC 1108

  
	
   

  	
  Orlando, FL 32801

  
	
   

  	
  Attention: Arnette Delaine

  
	
   

  	
  Tel:

  	
  (407) 237-2436

  
	
   

  	
  Fax:

  	
  (407) 237-5342

  
	
   

  	
  email: arnette.delaine@suntrust.com

  
					



 


10





















 


	
   

  	
  THE NORTHERN TRUST COMPANY, as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David C. Fisher

  	
   

  
	
   

  	
  Name: David C. Fisher

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  50 South LaSalle Street

  
	
   

  	
  Chicago, IL 60675

  
	
   

  	
  Attention: Linda Honda

  
	
   

  	
  Tel:

  	
  (312) 444-3532

  
	
   

  	
  Fax:

  	
  (312) 630-1566

  
	
   

  	
  email:

  
					



 


11