**Exhibit 10.1**

 

**FIRSTAMENDMENT TO CREDIT AGREEMENT**

 

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

 

**PRELIMINARYSTATEMENTS**

 

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

 

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

 

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

 

SECTION 1.                                DefinedTerms.  Except as otherwise definedin this Amendment, terms defined in the Credit Agreement are used herein asused therein.

 

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

 

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

 

## (a)                                  The Administrative Agent shallhave received a counterpart of this Amendment, executed and delivered by a dulyauthorized officer of each of (i) the Borrower and (ii) each of theLenders constituting the Requisite Lenders;

##  

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

##  

## (c)                                  After giving effect to theAmendment, no Potential Event of Default or Event of Default shall haveoccurred and be continuing.

 

----

 

SECTION 4.                                Representations andWarranties.

 

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

 

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

 

SECTION 5.  Effect on theLoan Documents.

 

(a)                                  Exceptas specifically amended above, the Credit Agreement and all other LoanDocuments shall continue to be in full force and effect and are hereby in allrespects ratified and confirmed.

 

(b)                                 Theexecution, delivery and effectiveness of this Amendment shall not operate as awaiver of any right, power or remedy of any Lender or the Administrative Agentunder any of the Loan Documents, nor constitute a waiver of any provision ofany of the Loan Documents.

 

(c)                                  ThisAmendment is a Loan Document executed pursuant to the Credit Agreement andshall be construed, administered and applied in accordance with all of theterms and provisions of the Credit Agreement.

 

SECTION 6.                                Expenses.  The Borrower agrees to pay or reimburse theAdministrative Agent for all of its reasonable out-of-pocket costs and expensesincurred in connection with this Amendment, any other documents prepared inconnection herewith and the transaction contemplated hereby, including, withoutlimitation, the reasonable fees and disbursements of counsel to theAdministrative Agent.

 

SECTION 7.                                No Waiver,Cumulative Remedies.  No failure ordelay or course of dealing on the part of the Lenders or the AdministrativeAgent in exercising any right, power or privilege hereunder shall operate as awaiver thereof, nor shall any single or partial exercise of any such right,power or privilege preclude any other or further exercise thereof or theexercise of any other right, power or privilege hereunder.  The rights, powers and remedies herein expresslyprovided are cumulative and not exclusive of any rights, powers or remedieswhich the Lenders or the Administrative Agent would otherwise have.  No notice to or demand on the Borrower in anycase shall entitle the Borrower to any other or further notice or demand insimilar or other circumstances or constitute a waiver of the rights of theLenders to any other or further action in any circumstances without notice ordemand.

 

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

 

2

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

 

SECTION 10.**                         **Executionin Counterparts; Effectiveness of Facsimile.  This Amendment may be executed by one or moreof the parties to this Amendment on any number of separate counterparts, andall of said counterparts taken together shall be deemed to constitute one andthe same instrument.  Delivery to theAdministrative Agent of an executed counterpart hereof (or a signature page hereto)by facsimile shall be effective as delivery of an original executed counterparthereof.

 

[*Signature Pages Follow*]

 

3

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**IN WITNESS WHEREOF**,the parties hereto have caused this Amendment to be executed by theirrespective officers thereunto duly authorized, as of the date first abovewritten.

 
|   |   | **HOSPIRA, INC.**                              |
|--------|--------|------------------------------------------------|
|   |   |                                           |
|   |   |                                           |
|   |   | By:                                            | /s/ Lori. O. Carlson |   |
|   |   | Name: Lori O. Carlson                          |
|   |   | Title: Corporate Vice President and  Treasurer |
|   |   |                                           |
|   |   |                                           |
|   |   | Notice Address:                                |
|   |   |                                           |
|   |   | 275 N. Field Drive                             |
|   |   | Lake Forest, Il 60045                          |
|   |   | Attention: Lori O. Carlson                     |
|   |   | Tel: (224) 212-2668                            |
|   |   | Fax: (224) 212-3284                            |
|   |   | email: lori.carlson@hospira.com                |

 

S-1

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|   |   | **CITICORP NORTH AMERICA, INC.**,    |
|--------|--------|--------------------------------------|
|   |   | as Lender and Administrative Agent   |
|   |   |                                 |
|   |   |                                 |
|   |   | By:                                  | /s/ Wajeeh Faheem |   |
|   |   | Name: Wajeeh Faheem                  |
|   |   | Title: Vice President                |
|   |   |                                 |
|   |   |                                 |
|   |   | Notice Address:                      |
|   |   |                                 |
|   |   | 390 Greenwich Street                 |
|   |   | New York, NY 10013                   |
|   |   | Attention: William E. Clark          |
|   |   | Tel: (212) 816-8183                  |
|   |   | Fax: (212) 816-8051                  |
|   |   | email: william.e.clark@citigroup.com |

 

S-2

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|   |   | **CITIGROUP GLOBAL MARKETS INC.**,                |
|--------|--------|---------------------------------------------------|
|   |   | as Joint Lead Bookrunner and Joint Lead  Arranger |
|   |   |                                              |
|   |   |                                              |
|   |   | By:                                               | /s/ Wajeeh Faheem |   |
|   |   | Name: Wajeeh Faheem                               |
|   |   | Title: Attorney in Fact                           |
|   |   |                                              |
|   |   | Notice Address:                                   |
|   |   |                                              |
|   |   | 390 Greenwich Street                              |
|   |   | New York, NY 10013                                |
|   |   | Attention: William E. Clark                       |
|   |   | Tel: (212) 816-8183                               |
|   |   | Fax: (212) 816-8051                               |
|   |   | email: william.e.clark@citigroup.com              |

 

S-3

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|   |   | **ABN AMRO INCORPORATED**,                        |
|--------|--------|---------------------------------------------------|
|   |   | as Joint Lead Bookrunner and Joint Lead  Arranger |
|   |   |                                              |
|   |   |                                              |
|   |   | By:                                               | /s/ Linda Boardman |   |
|   |   | Name: Linda Boardman                              |
|   |   | Title: Vice President and Director                |
|   |   |                                              |
|   |   | Notice Address:                                   |
|   |   |                                              |
|   |   | c/o ABN AMRO Bank N.V.                            |
|   |   | 208 South LaSalle Street, Suite 1500         |
|   |   | Chicago, IL 60604-1003                            |
|   |   | Attention: Loan Administration                    |
|   |   | Tel: (312) 992-5250                               |
|   |   | Fax: (312) 992-5155                               |
|   |   | email:                                            |

 

S-4

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|   |   | **ABN AMRO BANK N.V.**,  as Lender and Joint  Syndication Agent |
|--------|--------|-----------------------------------------------------------------|
|   |   |                                                            |
|   |   | By:                                                             | /s/ Eric Oppenheimer |   |
|   |   | Name: Eric Oppenheimer                                          |
|   |   | Title: Director                                                 |
|   |   |                                                            |
|   |   | By:                                                             | /s/ Kevin LeGallo |   |
|   |   | Name: Kevin LeGallo                                             |
|   |   | Title: Assistant Vice President                                 |
|   |   |                                                            |
|   |   | Notice Address:                                                 |
|   |   |                                                            |
|   |   | 208 South LaSalle Street, Suite 1500                       |
|   |   | Chicago, IL 60604-1003                                          |
|   |   | Attention: Loan Administration                                  |
|   |   | Tel: (312) 992-5250                                             |
|   |   | Fax: (312) 992-5155                                             |
|   |   | email:                                                          |
|        |        |                                                                 |  |  |  |

 

S-5

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|   |   | **MORGAN STANLEY SENIOR FUNDING,  INC.**, as Joint Lead Bookrunner, Joint Lead  Arranger and Joint Syndication Agent |
|--------|--------|----------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                 |
|   |   |                                                                                                                 |
|   |   | By:                                                                                                                  | /s/ Jaap L. Tonckens |   |
|   |   | Name: Jaap L. Tonckens                                                                                               |
|   |   | Title: Vice President                                                                                                |
|   |   |                                                                                                                 |
|   |   | Notice Address:                                                                                                      |
|   |   |                                                                                                                 |
|   |   | 1633 Broadway, 25th Floor                                                                                            |
|   |   | New York, NY 10019                                                                                                   |
|   |   | Attention: James Morgan/Larry Benison                                                                                |
|   |   | Tel: (212) 537-1470 / (212) 537-1439                                                                                 |
|   |   | Fax: (212) 537-1867 / 1866                                                                                           |
|   |   | email:                                                                                                               |

 

S-6

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|   |   | **MORGAN STANLEY BANK**,  as Lender   |
|--------|--------|---------------------------------------|
|   |   |                                  |
|   |   |                                  |
|   |   | By:                                   | /s/ Jaap L. Tonckens |   |
|   |   | Name: Jaap L. Tonckens                |
|   |   | Title: Vice President                 |
|   |   |                                  |
|   |   | Notice Address:                       |
|   |   |                                  |
|   |   | 1633 Broadway, 25th Floor             |
|   |   | New York, NY 10019                    |
|   |   | Attention: James Morgan/Larry Benison |
|   |   | Tel: (212) 537-1470 / (212) 537-1439  |
|   |   | Fax: (212) 537-1867 / 1866            |
|   |   | email:                                |

 

S-7

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|   |   | **JPMORGAN CHASE BANK, N.A.**,  as Lender  and Co-Documentation Agent |
|--------|--------|-----------------------------------------------------------------------|
|   |   |                                                                  |   |
|   |   |                                                                  |   |
|   |   | By:                                                                   |   |   |
|   |   | Name: Diane Faunda                                                    |
|   |   | Title: Director                                                       |
|   |   |                                                                  |   |
|   |   | Notice Address:                                                       |   |
|   |   |                                                                  |   |
|   |   | 1 Bank One Plaza, Mail Code IL 1-0010                                 |   |
|   |   | Chicago, IL 60670                                                     |   |
|   |   | Attention: William Laird                                              |   |
|   |   | Tel: (312) 385-7045                                                   |   |
|   |   | Fax: (312) 385-7098                                                   |   |
|   |   | email: william_laird@bankone.com                                      |   |
|        |        |                                                                       |  |  |  |

 

S-8

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|   |   | **BANK OF AMERICA, N.A.**,  as Lender and Co-  Documentation Agent |
|--------|--------|--------------------------------------------------------------------|
|   |   |                                                               |
|   |   |                                                               |
|   |   | By:                                                                | /s/ B. Kenneth Burton, Jr. |   |
|   |   | Name: B. Kenneth Burton, Jr.                                  |
|   |   | Title: Vice President                                              |
|   |   |                                                               |
|   |   | Notice Address:                                                    |
|   |   |                                                               |
|   |   | 1850 Gateway Blvd.                                                 |
|   |   | Concord, CA 94520-3282                                             |
|   |   | Attention: Pamela S. Greer-Tillman                                 |
|   |   | Tel: (925) 675-8453                                                |
|   |   | Fax: (888) 969-2786                                                |
|   |   | email:                                                             |

 

S-9

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|   |   | **BANK OF MONTREAL**,  as Lender  |
|--------|--------|-----------------------------------|
|   |   |                              |
|   |   |                              |
|   |   | By:                               | /s/ Joseph W. Linder |   |
|   |   | Name: Joseph W. Linder            |
|   |   | Title: Vice President             |
|   |   |                              |
|   |   | Notice Address:                   |
|   |   |                              |
|   |   | 115 South LaSalle Street, 12 West |
|   |   | Chicago, IL 60603                 |
|   |   | Attention: Joseph W. Linder       |
|   |   | Tel: (312) 750-3784               |
|   |   | Fax: (312) 750-6057               |
|   |   | email: joseph.linder@bmo.com      |

 

S-10

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|   |   | **BANK OF MONTREAL IRELAND PLC,**as  Lender with respect to LIBOR Rate Loans in Euros |
|--------|--------|---------------------------------------------------------------------------------------|
|   |   |                                                                                  |
|   |   |                                                                                  |
|   |   | By:                                                                                   | /s/ Eric Lindstrom |   |
|   |   | Name: Eric Lindstrom                                                                  |
|   |   | Title: General Manager                                                                |
|   |   |                                                                                  |
|   |   | Notice Address:                                                                       |
|   |   |                                                                                  |
|   |   | 4th Floor Segrave House                                                               |
|   |   | 19/20 Earlsfort Terrace                                                               |
|   |   | Dublin 2, IRELAND                                                                     |
|   |   | Attention: Eric Lindstrom                                                             |
|   |   | Tel: 353-1-662-9300                                                                   |
|   |   | Fax: 353-1-662-9301                                                                   |
|   |   | email: eric.lindstrom@bmo.com                                                         |

 

S-11

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|   |   | **THE BANK OF TOKYO-MITSUBISHI, LTD.,  CHICAGO BRANCH**, as Lender |
|--------|--------|--------------------------------------------------------------------|
|   |   |                                                               |
|   |   |                                                               |
|   |   | By:                                                                | /s/ Kazuya Matsushita |   |
|   |   | Name: Kazuya Matsushita                                            |
|   |   | Title: General Manager                                             |
|   |   |                                                               |
|   |   | Notice Address:                                                    |
|   |   |                                                               |
|   |   | The Bank of Tokyo-Mitsubishi, Ltd.                                 |
|   |   | Chicago Branch                                                     |
|   |   | 227 W. Monroe St., Suite 2300                                 |
|   |   | Chicago, IL 60606                                                  |
|   |   | Attention: Corporate Banking—Ms. Diane  Tkach            |
|   |   | Tel: (312) 696-4663                                                |
|   |   | Fax: (312) 696-4535                                                |
|   |   | email: dtkach@btmna.com                                            |

 

S-11

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|   |   | **BNP PARIBAS**, as  Lender    |
|--------|--------|--------------------------------|
|   |   |                           |
|   |   |                           |
|   |   | By:                            | /s/ Wendy Breuder |   |
|   |   | Name: Wendy Breuder            |
|   |   | Title: Managing Director       |
|   |   |                           |
|   |   |                           |
|   |   | By:                            | /s/ Christopher S. Grumboski |   |
|   |   | Name: Christopher S. Grumboski |
|   |   | Title: Director                |
|   |   |                           |
|   |   | Notice Address:                |
|   |   |                           |
|   |   | 919 Third Avenue               |
|   |   | 3rd Floor                      |
|   |   | New York, NY 10022             |
|   |   | Attention: Gabriel Candamo     |
|   |   | Tel: (212) 471-6626            |
|   |   | Fax: (212) 471-6695            |
|   |   | email:                         |
|        |        |                                |  |  |  |  |

 

S-12

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|   |   | **COMMERZBANK AG, NEW YORK AND  GRAND CAYMAN BRANCHES**, as Lender |
|--------|--------|--------------------------------------------------------------------|
|   |   |                                                               |
|   |   | By:                                                                | /s/ Graham A. Warning |   |
|   |   | Name: Graham A. Warning                                            |
|   |   | Title: Assistant Vice President                                    |
|   |   |                                                               |
|   |   |                                                               |
|   |   | By:                                                                | /s/ John Marlatt |   |
|   |   | Name: John Marlatt                                                 |
|   |   | Title: Senior Vice President                                       |
|   |   |                                                               |
|   |   | Notice Address:                                                    |
|   |   |                                                               |
|   |   | 20 South Clark Street                                              |
|   |   | Suite 2700                                                    |
|   |   | Chicago, Il 60603                                                  |
|   |   | Attention: John Marlatt                                            |
|   |   | Tel: (312) 795-1625                                                |
|   |   | Fax: (312) 236-2827                                                |
|   |   | email: jmarlatt@cbkna.com                                          |
|        |        |                                                                    |  |  |  |  |

 

S-13

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|   |   | **SUNTRUST BANK**, as  Lender    |
|--------|--------|----------------------------------|
|   |   |                             |
|   |   | By:                              | /s/ W. Brooks Hubbard |   |
|   |   | Name: W. Brooks Hubbard          |
|   |   | Title: Director                  |
|   |   |                             |
|   |   | Notice Address:                  |
|   |   |                             |
|   |   | 200 South Orange Avenue, MC 1108 |
|   |   | Orlando, FL 32801                |
|   |   | Attention: Arnette Delaine       |
|   |   | Tel: (407) 237-2436              |
|   |   | Fax: (407) 237-5342              |
|   |   | email:                           |

 

S-14

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|   |   | **WACHOVIA BANK, N.A.**,  as Lender   |
|--------|--------|---------------------------------------|
|   |   |                                  |
|   |   |                                  |
|   |   | By:                                   | /s/ James Travagline |   |
|   |   | Name: James Travagline                |
|   |   | Title: Vice President                 |
|   |   |                                  |
|   |   | Notice Address:                       |
|   |   |                                  |
|   |   | 201 South College Street CP9, NC 1183 |
|   |   | Charlotte, NC 28288                   |
|   |   | Attention: Dianne Taylor              |
|   |   | Tel: (704) 715-1876                   |
|   |   | Fax: (704) 715-0094                   |
|   |   | email:                                |

 

S-15

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|   |   | **THE NORTHERN TRUST COMPANY**,  as  Lender |
|--------|--------|---------------------------------------------|
|   |   |                                        |
|   |   |                                        |
|   |   | By:                                         | /s/ David C. Fisher |   |
|   |   | Name: David C. Fisher                       |
|   |   | Title: Vice President                       |
|   |   |                                        |
|   |   | Notice Address:                             |
|   |   |                                        |
|   |   | 50 South LaSalle Street                     |
|   |   | Chicago, IL 60675                           |
|   |   | Attention: Linda Honda                      |
|   |   | Tel: (312) 444-3532                         |
|   |   | Fax: (312) 630-1566                         |
|   |   | email:                                      |

 

S-16

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**EXHIBIT A**

 

 

A-1

----

 

**EXHIBIT A**

 

 

**$375,000,000**

**CREDITAGREEMENT AND GUARANTY**

 

**dated asof April 30, 2004,**

 

**as amendedas of April 29, 2005**

 

**among**

 

**HOSPIRA,INC.,**

**as theBorrower and the Guarantor,**

 

**THESUBSIDIARY BORROWERS**

**FROM TIMETO TIME PARTY HERETO,**

 

**THE BANKSAND FINANCIAL INSTITUTIONS LISTED HEREIN,**

**asLenders,**

 

**CITIGROUPGLOBAL MARKETS INC.,**

**ABNAMRO INCORPORATED,**

 

**and**

 

**MORGANSTANLEY SENIOR FUNDING, INC.,**

**asJoint Lead Bookunners and Joint Lead Arrangers,**

 

**ABNAMRO BANK N.V.,**

**and**

**MORGANSTANLEY SENIOR FUNDING, INC.,**

**asJoint Syndication Agents,**

 

**BANKONE, NA**

**and**

**BANKOF AMERICA, N.A.,**

**asCo-Documentation Agents**

 

**and**

 

**CITICORPNORTH AMERICA, INC.,**

**asAdministrative Agent**

 

----

 

 

**CREDIT AGREEMENT**

 

**TABLE OF CONTENTS**

 
| **SECTION 1. DEFINITIONS**                                | ** **                                                                                       |
|----------------------------------------------------------------|--------------------------------------------------------------------------------------------------|
| ** **                                                     | ** **                                                                                       | ** ** |
| 1.1                                                            | Certain Defined Terms                                                                            |   |
| 1.2                                                            | Accounting Terms; Utilization of GAAP for  Purposes of Calculations Under Agreement              |   |
| 1.3                                                            | Other Definitional Provisions and  Rules of Construction                                    |   |
|                                                           |                                                                                             |   |
| **SECTION 2.  AMOUNT AND TERMS OF COMMITMENTS AND LOANS** | ** **                                                                                       |
| ** **                                                     | ** **                                                                                       | ** ** |
| 2.1                                                            | Commitment; Making of Revolving Loan;  Letters of Credit                                         |   |
| 2.2                                                            | Issuance of Letters of Credit and Purchase  of Participations Therein                            |   |
| 2.3                                                            | Pro Rata Shares; Availability of Funds; UCP                                                      |   |
| 2.4                                                            | The Register; Evidence of Debt; Revolving  Loan Notes                                            |   |
| 2.5                                                            | Interest on the Revolving Loans                                                                  |   |
| 2.6                                                            | Fees                                                                                             |   |
| 2.7                                                            | Provisions Regarding Payments                                                                    |   |
| 2.8                                                            | Increased Costs; Taxes                                                                           |   |
| 2.9                                                            | Special Provisions Governing LIBOR Rate  Loans                                                   |   |
| 2.10                                                           | Matters Relating to Currency Exchange Rates  and Conversion of Amounts to Alternative Currencies |   |
| 2.11                                                           | Defaulting Lenders                                                                               |   |
| 2.12                                                           | Removal or Replacement of a Lender                                                               |   |
| 2.13                                                           | Mitigation                                                                                       |   |
|                                                           |                                                                                             |   |
| **SECTION 3.  CONDITIONS PRECEDENT**                      | ** **                                                                                       |
| ** **                                                     | ** **                                                                                       | ** ** |
| 3.1                                                            | Conditions to Effectiveness                                                                      |   |
| 3.2                                                            | Conditions Precedent to each Credit  Extension                                                   |   |
|                                                           |                                                                                             |   |
| **SECTION 4.  REPRESENTATIONS AND WARRANTIES **      | ** **                                                                                       |
| ** **                                                     | ** **                                                                                       | ** ** |
| 4.1                                                            | Organization, Powers, Qualification, Good  Standing, Business and Subsidiaries                   |   |
| 4.2                                                            | Authorization of Borrowing, etc                                                                  |   |
| 4.3                                                            | Valid Issuance of Securities                                                                     |   |
| 4.4                                                            | Financial Condition                                                                              |   |
| 4.5                                                            | No Material Adverse Change; No Restricted  Payments                                              |   |
| 4.6                                                            | Indebtedness                                                                                     |   |
| 4.7                                                            | Title to Properties; Liens                                                                       |   |
| 4.8                                                            | Intellectual Property Matters                                                                    |   |
| 4.9                                                            | No Litigation; Compliance with Laws                                                              |   |
| 4.10                                                           | Payment of Taxes                                                                                 |   |
| 4.11                                                           | Employee Matters                                                                                 |   |
| 4.12                                                           | No Default                                                                                       |   |
|                                                                |                                                                                                  |  |  |  |  |

 

i

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| 4.13                                       | Governmental Regulation                              |       |
|--------------------------------------------|------------------------------------------------------|------------|
| 4.14                                       | Securities Activities                                |       |
| 4.15                                       | Employee Benefit Plans                               |       |
| 4.16                                       | Certain Fees                                         |       |
| 4.17                                       | Environmental Protection                             |       |
| 4.18                                       | Solvency                                             |       |
| 4.19                                       | Pari Passu                                           |       |
| 4.20                                       | Restrictions                                         |       |
| 4.21                                       | Related Agreements                                   |       |
| 4.22                                       | Disclosure                                           |       |
|                                       |                                                 |       |
| **SECTION 5.  AFFIRMATIVE COVENANTS** | ** **                                           |
| ** **                                 | ** **                                           | ** ** |
| 5.1                                        | Financial Statements and Other Reports               |       |
| 5.2                                        | Books and Records; Lenders Meetings                  |       |
| 5.3                                        | Existence                                            |       |
| 5.4                                        | Insurance                                            |       |
| 5.5                                        | Payment of Taxes and Claims                          |       |
| 5.6                                        | Payment and Performance of Obligations               |       |
| 5.7                                        | Maintenance of Properties                            |       |
| 5.8                                        | Compliance with Laws                                 |       |
| 5.9                                        | Use of Proceeds                                      |       |
| 5.10                                       | Ownership  of Subsidiary Borrowers                   |       |
| 5.11                                       | Claims *Pari  Passu*                                 |       |
| 5.12                                       | Further  Assurances                                  |       |
|                                       |                                                 |       |
| **SECTION 6.  NEGATIVE COVENANTS**    | ** **                                           |
| ** **                                 | ** **                                           | ** ** |
| 6.1                                        | Liens                                                |       |
| 6.2                                        | Indebtedness                                         |       |
| 6.3                                        | Acquisitions                                         |       |
| 6.4                                        | Restrictions on Subsidiary Distributions             |       |
| 6.5                                        | Restricted Payments                                  |       |
| 6.6                                        | Restriction on Fundamental Changes; Sales  of Assets |       |
| 6.7                                        | [Reserved.]                                          |       |
| 6.8                                        | Conduct of Business                                  |       |
| 6.9                                        | Accounting Changes; Fiscal Year                      |       |
| 6.10                                       | Other Indebtedness                                   |       |
| 6.11                                       | Transactions with Shareholders and  Affiliates       |       |
| 6.12                                       | [Reserved.]                                          |       |
| 6.13                                       | [Reserved.]                                          |       |
| 6.14                                       | Financial Covenants                                  |       |
| 6.15                                       | Interest Rate Agreements and Currency  Agreements    |       |
|                                       |                                                 |       |
| **SECTION 7. GUARANTY**               | ** **                                           |
| ** **                                 | ** **                                           | ** ** |
| 7.1                                        | Guaranty of the Obligations                          |       |
| 7.2                                        | Payment by the Borrower                              |       |
| 7.3                                        | Liability of Guarantor Absolute                      |       |
| 7.4                                        | Waivers by Guarantor                                 |       |
|                                            |                                                      |            |  |  |

 

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| 7.5                                   | Guarantor’s Rights of Subrogation,  Contribution, etc       |       |
|---------------------------------------|------------------------------------------------------------------|------------|
| 7.6                                   | Subordination of Other Obligations                               |       |
| 7.7                                   | Continuing Guaranty                                              |       |
| 7.8                                   | Authority of Credit Parties                                      |       |
| 7.9                                   | Financial Condition of Credit Parties                            |       |
| 7.10                                  | Bankruptcy,  etc                                                 |       |
|                                  |                                                             |       |
| **SECTION 8. EVENTS OF DEFAULT** | ** **                                                       |
| ** **                            | ** **                                                       | ** ** |
| 8.1                                   | Failure to Make Payments When Due                                |       |
| 8.2                                   | Default in Other Agreements                                      |       |
| 8.3                                   | Breach of Certain Covenants                                      |       |
| 8.4                                   | Breach of Representation or Warranty                             |       |
| 8.5                                   | Other Defaults Under Loan Documents                              |       |
| 8.6                                   | Involuntary Bankruptcy; Appointment of  Receiver, etc            |       |
| 8.7                                   | Voluntary Bankruptcy; Appointment of  Receiver, etc              |       |
| 8.8                                   | Judgments and Attachments                                        |       |
| 8.9                                   | Dissolution                                                      |       |
| 8.10                                  | Employee Benefit Plans                                           |       |
| 8.11                                  | Change  in Control                                               |       |
| 8.12                                  | Repudiation of Obligations                                       |       |
|                                  |                                                             |       |
| **SECTION 9. MISCELLANEOUS**     | ** **                                                       |
| ** **                            | ** **                                                       | ** ** |
| 9.1                                   | Assignments and Participations in Loans and  Letters of Credit   |       |
| 9.2                                   | Expenses                                                         |       |
| 9.3                                   | Indemnity                                                        |       |
| 9.4                                   | Exception for Subsidiary Borrowers                               |       |
| 9.5                                   | Set-Off                                                          |       |
| 9.6                                   | Amendments and Waivers                                           |       |
| 9.7                                   | Independence of Covenants                                        |       |
| 9.8                                   | Notices                                                          |       |
| 9.9                                   | Survival of Representations, Warranties and  Agreements          |       |
| 9.10                                  | Failure or Indulgence Not Waiver; Remedies  Cumulative           |       |
| 9.11                                  | Marshalling; Payments Set Aside                                  |       |
| 9.12                                  | Severability                                                     |       |
| 9.13                                  | Headings                                                         |       |
| 9.14                                  | Applicable  Law                                                  |       |
| 9.15                                  | Successors and Assigns                                           |       |
| 9.16                                  | Consent to Jurisdiction and Service of Process                   |       |
| 9.17                                  | Waiver of Jury Trial                                             |       |
| 9.18                                  | Confidentiality                                                  |       |
| 9.19                                  | Ratable  Sharing                                                 |       |
| 9.20                                  | Counterparts; Effectiveness                                      |       |
| 9.21                                  | Obligations Several; Independent Nature of  Lenders’ Rights |       |
| 9.22                                  | Usury Savings Clause                                             |       |
| 9.23                                  | Judgment Currency                                                |       |
|                                  |                                                             |       |
| **SECTION 10. AGENTS**           | ** **                                                       |

 

iii

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| 10.1                                                  | Appointment                                                                          |   |
|-------------------------------------------------------|--------------------------------------------------------------------------------------|--------|
| 10.2                                                  | Powers and Duties; General Immunity                                                  |   |
| 10.3                                                  | Representations and Warranties; No  Responsibility For Appraisal of Creditworthiness |   |
| 10.4                                                  | Right  to Indemnity                                                                  |   |
| 10.5                                                  | Successor Administrative Agent                                                       |   |
| 10.6                                                  | Agents Under Guaranty                                                                |   |
| 10.7                                                  | Acknowledgment of Potential Related  Transactions                                    |   |
|                                                  |                                                                                 |   |
| **SECTION 11. JOINDER OF SUBSIDIARY  BORROWERS** | ** **                                                                           |

 

iv

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**EXHIBITS**

 

 
| I    | FORM OF NOTICE OF BORROWING             |   |
|------|----------------------------------------------|--------|
| II   | FORM OF CONVERSION/CONTINUATION NOTICE  |   |
| III  | FORM OF REVOLVING LOAN NOTE             |   |
| IV   | FORM OF CERTIFICATE RE NON-BANK STATUS  |   |
| V    | FORM OF FINANCIAL CONDITION CERTIFICATE |   |
| VI   | FORM OF ASSIGNMENT AGREEMENT            |   |
| VII  | FORM OF ISSUANCE NOTICE                 |   |
| VIII | FORM OF SECRETARY’S CERTIFICATE    |   |
| IX   | FORM OF OFFICER’S CERTIFICATE      |   |
| X    | FORM OF JOINDER AGREEMENT               |   |

 

v

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**SCHEDULES**

 

 
| 2.1A | LENDERS’ COMMITMENTS AND PRO RATA SHARES |   |
|------|-----------------------------------------------|--------|
| 4.1C | SUBSIDIARIES                                  |   |
| 4.6  | INDEBTEDNESS                                  |   |
| 6.1  | LIENS                                         |   |
| 6.3  | INVESTMENTS                                   |   |
| 6.6  | POTENTIAL REAL ESTATE SALES                   |   |
| 6.12 | TRANSACTIONS WITH AFFILIATES                  |   |

 

vi

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**US$375 Million Revolving Credit Facility**

 

**CREDIT AGREEMENT AND GUARANTY**

 

This **CREDIT AGREEMENT AND GUARANTY** is dated as of April 30,2004 and entered into by and among Hospira, Inc., a Delaware corporation(the **“Borrower”**), the SubsidiaryBorrowers from time to time party hereto, the banks and financial institutionslisted on the signature pages hereof (each individually referred to hereinas a **“Lender”** and collectively as **“Lenders”**), Citigroup Global Markets, Inc.(**“CGMI”**), ABN AMRO Incorporated (**“ABN AMRO”**) and Morgan Stanley SeniorFunding, Inc. (**“MSSF”**) asjoint lead bookrunners and joint lead arrangers (in such capacity, the **“Lead Arrangers”**), ABN AMRO Bank N.V. (**“ABN AMRO Bank”**) and MSSF as jointsyndication agents (in such capacity, the **“SyndicationAgents”**), Bank One, NA and Bank of America, N.A. as co-documentationagents (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 CreditParties have requested, and the Lenders have agreed to extend, the revolvingloans and letters of credit hereinafter described in the amount and on theterms and conditions set forth herein.

 

**NOW,THEREFORE,** in consideration of the mutual agreementscontained herein, and other good and valuable consideration, the receipt andsufficiency which are hereby acknowledged, the Credit Parties, the Lenders, theLead Arrangers, the Syndication Agents and the Administrative Agent agree asfollows:

 

**SECTION 1****.**                            **DEFINITIONS**

 

**1.1****          Certain Defined Terms.**

 

The following terms used in this Agreement shall havethe following meanings:

 

**“Abbott”**meansAbbott Laboratories, an Illinois corporation.

 

**“ABN AMRO”**shallhave 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 thisAgreement.

 

**“Acquisition”** shall havethe meaning ascribed to such term in Section 6.3.

 

**“Administrative Agent”** shall have the meaning ascribed to such termin the introduction to this Agreement.

 

**“Affected Lender”**shall have themeaning ascribed to such term in Section 2.9B.

 

----

 

**“Affected Loans”** shall have themeaning ascribed to such term in Section 2.9B.

 

**“Affiliate”** means, as applied toany 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”, “controlledby” and “under common control with”), as applied to any Person, means thepossession, directly or indirectly, of the power (i) to vote 10% or moreof the Securities having ordinary voting power for the election of directors ofsuch Person or (ii) to direct or cause the direction of the management andpolicies of that Person, whether through the ownership of voting securities orby contract or otherwise.

 

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

 

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

 

**“Aggregate Amounts Due”**shallhave the meaning ascribed to such term in Section 9.19.

 

**“Agreement”** meansthis Credit Agreement and Guaranty as it may be amended, supplemented or otherwisemodified from time to time.

 

**“Alternative Currency”**means Euros or Canadian dollars.

 

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

 

**“Alternative Currency Sublimit”**means a Dollar Amount not in excess of $100,000,000; provided, that noindividual Subsidiary Borrower shall be permitted to borrow AlternativeCurrency Loans, the Dollar Amount of which is in excess of $50,000,000 in theaggregate.

 

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

 

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

 

**“Applicable Margin”** means, as ofany date, a percentage per annum determined by reference to the applicablePerformance Level with respect to the Borrower in effect on such date, as setforth below:

 

2

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| **Performance Level**           | ** ** | **Level I** | ** ** | **Level II** | ** ** | **Level III** | ** ** | **Level IV** | ** ** | **Level V** | ** ** |
|---------------------------------|------------|-------------|------------|--------------|------------|---------------|------------|--------------|------------|-------------|------------|
| **Base Rate Applicable Margin** |       | 0           | %          | 0            | %          | 0             | %          | 0            | %          | 0.25        | %          |
| **LIBOR Applicable Margin**     |       | 0.375       | %          | 0.475        | %          | 0.575         | %          | 0.900        | %          | 1.25        | %          |
| **Facility Fee**                |       | 0.125       | %          | 0.15         | %          | 0.175         | %          | 0.225        | %          | 0.375       | %          |

 

For purposes hereof, **“Performance Level”** means, with respect to the Borrower, Performance Level I,Performance Level II, Performance Level III, Performance Level IV orPerformance Level V, as identified by reference to the public debt rating of the Borrower, as the case may be, ineffect 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 Levelshall be determined by the applicable public debt rating for the Borrower as follows:  (i) the public debt ratings shall bedetermined 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 seniorunsecured debt issued by the Borrower;(ii) if only one of S&P and Moody’s shall have in effect such a publicdebt rating, the Performance Level shall be determined by reference to theapplicable rating; (iii) if neither S&P nor Moody’s shall have ineffect such a public debt rating, the applicable Performance Level will beLevel V; (iv) if such public debt ratings established by S&P and Moody’sshall fall within different levels, the public debt rating will be determinedby the higher of the two ratings, provided, that in the event that thelower of such public debt ratings is more than one level below the higher ofsuch public debt ratings, the public debt rating will be determined based uponthe level that is one level above the lower of such public debt ratings; (v) ifany such public debt rating established by S&P or Moody’s shall be changed,such change shall be effective as of the date on which such change is firstannounced publicly by the rating agency making such change; and (vi) ifS&P or Moody’s shall change the basis on which such public debt ratings are

 

3

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established, eachreference to the public debt rating announced by S&P or Moody’s, as thecase 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, therate, expressed as a decimal, at which reserves (including any basic marginal,special, supplemental, emergency or other reserves) are required to bemaintained by such Lender against “Eurocurrency liabilities” (as such term isdefined in Regulation D) under regulations issued from time to time by theBoard of Governors of the Federal Reserve System or other applicable bankingregulator.  Without limiting the effectof the foregoing, the Applicable Reserve Requirement shall reflect any otherreserves required to be maintained by the applicable Lender with respect to (i) anycategory of liabilities which includes deposits by reference to which theapplicable LIBOR rate is to be determined, or (ii) any category ofextensions of credit or other assets which include LIBOR Rate Loans.  For purposes hereof, a LIBOR Rate Loan shallbe deemed to constitute Eurocurrency liabilities and as such shall be deemedsubject to reserve requirements without benefits of credit for proration,exceptions or offsets that may be available from time to time to the applicableLender.

 

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

 

**“Asset Sale”** means a sale, leaseor sub-lease (as lessor or sublessor), sale and leaseback transaction,assignment, conveyance, transfer or other disposition to, or any exchange ofproperty with, any Person, in one transaction or a series of transactions, ofall 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 whethertangible or intangible, whether now owned or hereafter acquired, including theCapital Stock of any Subsidiary of such Credit Party, other than suchbusinesses, properties or assets sold in the ordinary course of business andconsistent with past business practice of the Borrower and its Subsidiaries.

 

**“Assignment Agreement”** means anassignment agreement, substantially in the form of Exhibit VIhereto, satisfactory in form and substance to the Administrative Agent.

 

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

 

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

 

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

 

**“Beneficiary”** meanseach Agent, the Issuing Bank and Lender.

 

4

----

 

**“Borrower”**shallhave 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 courseof business of the Borrower and pursuant to the Borrower’s commercial paperprogram.

 

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

 

**“Business Day”** means any day that is not a Saturday, Sundayor other day on which commercial banks in New York City, or, with respect tothe 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 inconnection with a LIBOR Rate Loan, the term “Business Day” shall also excludeany day on which banks are not open for dealings in Dollar deposits in theLondon interbank market, (b) when used in connection with an AlternativeCurrency Loan, the term “Business Day” shall also exclude any day on whichbanks are not open for dealings in deposits in the applicable AlternativeCurrency in the London interbank market and (c) when used in connectionwith any Revolving Loan denominated in Euros, the term “Business Day” shallalso exclude any day on which the TARGET payment system is not open for thesettlement of payment in Euro.

 

**“Canadian Dollars”**means the lawful money of Canada.

 

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

 

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

 

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

 

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

 

**“Capital Lease”**, as applied toany 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 acapital lease on the balance sheet of that Person.

 

**“Capital Stock”**means any and all shares, interests, participations or other equivalents (howeverdesignated) of capital stock of a corporation, any and all equivalent ownershipinterests in a Person (other than a corporation), including partnershipinterests and membership interests, and any and all warrants, rights or optionsto purchase or other arrangements or rights to acquire any of the foregoing.

 

5

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

 

**“Cash Equivalents”**means, as at any date of determination, (i) marketable securities (a) issuedor directly and unconditionally guaranteed as to interest and principal by theUnited States government or (b) issued by any agency of the United Statesthe obligations of which are backed by the full faith and credit of the UnitedStates, in each case maturing within one year after such date; (ii) marketabledirect obligations issued by any state of the United States of America or anypolitical subdivision of any such state or any public instrumentality thereof,in each case maturing within one year after such date and having, at the timeof the acquisition thereof, a rating of at least A-1 from S&P or atleast P-1 from Moody’s; (iii) commercial paper maturing no more thanone year from the date of creation thereof and having, at the time of theacquisition thereof, a rating of at least A-1 from S&P or at least P-1from Moody’s; (iv) certificates of deposit or bankers’ acceptancesmaturing within one year after such date and issued or accepted by any Lenderor by any commercial bank organized under the laws of the United States ofAmerica or any state thereof or the District of Columbia that (a) is atleast “adequately capitalized” (as defined in the regulations of its primaryFederal banking regulator) and (b) has Tier 1 capital (as defined in suchregulations) of not less than $100,000,000; (v) shares of any money marketmutual fund that (a) has substantially all of its assets investedcontinuously 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 thehighest rating obtainable from either S&P or Moody’s; and (vi) in thecase of any Credit Party or Subsidiary of a Credit Party doing business outsidethe United States, any obligation that is substantially similar or comparableto the obligations described above and that is customary in the applicablejurisdiction 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 ofCanadian Dollars bankers’ acceptances for a term of thirty (30) days whichappear 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 onthe immediately preceding Business Day; provided, that if such rate does notappear on the Reuters Screen CDOR Page as contemplated, the CDOR Rate onany date shall be the annual rate of interest quoted to Citibank, N.A. for suchbankers’ acceptances for a term of thirty (30) days.

 

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

 

**“CGMI”** shall havethe 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-3and 13d-5 under the Exchange Act) shall have acquired beneficialownership of 30% or more on a fully diluted basis of the voting and/or economicinterest in the Capital Stock of the Borrower; (ii) any Person or “group”(within the meaning of Rules 13d-3 and 13d-5 under theExchange Act) shall have obtained the power (whether or not exercised) to electa majority of the members of the board of directors (or similar governing body)of the Borrower; (iii) during

 

6

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

 

**“Citicorp”**shall have the meaning ascribed to such termin the introduction to this Agreement.

 

**“ComplianceCertificate”**means a certificate of the chief financial officer, treasurer or controller ofthe Borrower setting forth computations in reasonable detail demonstrating (i) compliancewith the covenants set forth in Section 6.14, as at the end of the periodcovered by such financial statements, and (ii) certifying that suchofficer has obtained no knowledge of any Potential Event of Default or Event ofDefault except as specified in such certificate.

 

**“Consolidated Adjusted EBIT”**means, in respect of the Borrower andits Subsidiaries on a consolidated basis, for any period, an amount equal to (i) thesum, without duplication, of the amounts for such period of (a) ConsolidatedNet Income, (b) Consolidated Financing Expense, (c) provisions fortaxes based on income and (d) other non-Cash items reducing ConsolidatedNet Income (excluding any such non-Cash item to the extent that it representsan accrual or reserve for potential Cash items in any future period oramortization of a prepaid Cash item that was paid in a prior period), minus(ii) other non-Cash items increasing Consolidated Net Income for suchperiod (excluding any such non-Cash item to the extent it represents thereversal 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, ofthe amounts for such period of (a) Consolidated Net Income, (b) ConsolidatedFinancing Expense, (c) provisions for taxes based on income, (d) totaldepreciation expense, (e) total amortization expense, and (f) othernon-Cash items reducing Consolidated Net Income (excluding any such non-Cashitem to the extent that it represents an accrual or reserve for potential Cashitems in any future period or amortization of a prepaid Cash item that was paidin a prior period), minus (ii) other non-Cash items increasingConsolidated Net Income for such period (excluding any such non-Cash item tothe extent it represents the reversal of an accrual or reserve for potentialCash item in any prior period).

 

**“Consolidated Financing Expense”**means, in respect of the Borrower andits Subsidiaries on a consolidated basis, for any period, total interestexpense (including that portion attributable to Capital Leases in accordancewith GAAP and capitalized interest) with respect to all outstandingIndebtedness of the Borrower andits Subsidiaries, including all commissions,

 

7

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

 

**“Consolidated Net Income”** means,in respect of the Borrower andits Subsidiaries on a consolidated basis, for any period, (i) the netincome (or loss) for the Borrower andits Subsidiaries for such period taken as a single accounting period determinedin conformity with GAAP, minus (ii) (a) the income (or loss)of any Person (other than a Subsidiary of theBorrower) 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 actuallypaid to the Borrower or any ofits Subsidiaries by such Person during such period, (b) the income (orloss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into orconsolidated with the Borrower orany 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 theBorrower to the extent that the declaration or payment of dividends orsimilar distributions by that Subsidiary of that income is not at the timepermitted by operation of the terms of its charter or any agreement,instrument, judgment, decree, order, statute, rule or governmentalregulation applicable to that Subsidiary, (d) any after-tax gains orlosses attributable to Asset Sales or returned surplus assets of any PensionPlan, 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 theBorrower and its Subsidiaries on a consolidated basis, as at any date ofdetermination, 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 memberof the board of directors of such Person on the first day of such period orwhose election to the board of directors of such Person is approved by amajority of the other Continuing Directors.

 

**“Contractual Obligation”**, asapplied to any Person, means any provision of any securities issued by thatPerson or of any indenture, mortgage, deed of trust, or other materialcontract, undertaking, agreement or other material instrument to which thatPerson is a party or by which it or any of its properties is bound or to whichit 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”** meansthe date of a Credit Extension.

 

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

 

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

 

**“Currency”** meansany of Canadian Dollars, Dollars or Euros.

 

**“Currency Agreement”** means anyforeign exchange contract, currency swap agreement, futures contract, optioncontract, synthetic cap or other similar agreement or arrangement.

 

**“Debt Issuance”** means theissuance by the Borrower or anyof its Subsidiaries of debt Securities.

 

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

 

**“Default Period”**means, with respect to any Defaulting Lender, the period commencing on the dateof the applicable Funding Default and ending on the earliest of the followingdates:  (i) the date on which allRevolving Commitments are cancelled or terminated and/or the Obligations aredeclared or become immediately due and payable, (ii) the date on which (a) theDefault Excess with respect to such Defaulting Lender shall have been reducedto zero (whether by the funding by such Defaulting Lender of any DefaultedLoans of such Defaulting Lender or by the non-pro rata application of anyvoluntary or mandatory prepayments of the Loans in accordance with the terms ofSection 2.7B) and (b) such Defaulting Lender shall have delivered tothe Credit Parties and the Administrative Agent a written reaffirmation of itsintention to honor its obligations hereunder with respect to its RevolvingCommitments, and (iii) the date on which the Credit Parties, theAdministrative Agent and the Requisite Lenders waive all Funding Defaults ofsuch 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, savingsand loan association, credit union or like organization, other than an accountevidenced by a negotiable certificate of deposit.

 

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

 

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

 

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terms and conditionsconsistent with the Separation and Distribution Agreement and the Form 10.

 

**“Documentation Agents”** shall have the meaning ascribed to such termin the introduction to this Agreement.

 

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

 

**“Dollar Amount”**means, at any time:

 

(a)                                  withrespect to any Dollar-Denominated Revolving Loan, the principal amount thereofthen outstanding;

 

(b)                                 withrespect to any Alternative Currency Loan, the principal amount thereof thenoutstanding in the relevant Alternative Currency, converted to Dollars inaccordance with Section 2.10; and

 

(c)                                  withrespect 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 aresatisfied or waived in accordance with Section 9.6.

 

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

 

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

 

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

 

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

 

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

 

**“ERISA”** means the EmployeeRetirement Income Security Act of 1974, as amended from time to time, and anysuccessor thereto.

 

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

 

**“ERISA Event”** means (i) a “reportableevent” within the meaning of Section 4043 of ERISA and the regulationsissued thereunder with respect to any Pension Plan (excluding those for whichthe provision for 30-day notice to the PBGC has been waived by regulationand further excluding those that are directly attributable to the Distributionor the transfer of assets from any Pension Plan of Abbott to any Pension Planof the Borrower in accordance with the Employee Benefits Agreement betweenAbbott and the Borrower dated April 16, 2004); (ii) the failure tomeet the minimum funding standard of Section 412 of the Internal RevenueCode with respect to any Pension Plan (whether or not waived in accordance withSection 412(d) of the Internal Revenue Code) or the failure to makeby its due date a required installment under Section 412(m) of the InternalRevenue Code with respect to any Pension Plan or the failure to make anyrequired contribution to a Multiemployer Plan; (iii) the provision by theadministrator of any Pension Plan pursuant to Section 4041(a)(2) ofERISA of a notice of intent to terminate such plan in a distress terminationdescribed in Section 4041(c) of ERISA; (iv) the withdrawal by the Borrower or any of its

 

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ERISA Affiliates from anyPension Plan with two or more contributing sponsors (other than any suchwithdrawal attributable to consummation of the transactions contemplated by theSeparation and Distribution Agreement) or the termination of any such PensionPlan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) theinstitution by the PBGC of proceedings to terminate any Pension Plan, or theoccurrence of any event or condition which might reasonably constitute groundsunder ERISA for the termination of, or the appointment of a trustee toadminister, any Pension Plan; (vi) the imposition of liability on theBorrower or any of its ERISA Affiliates pursuant to Section 4062(e) or4069 of ERISA or by reason of the application of Section 4212(c) ofERISA; (vii) the withdrawal by the Borrower, any of its Subsidiaries orany of their respective ERISA Affiliates in a complete or partial withdrawal(within the meaning of Sections 4203 and 4205 of ERISA) from any MultiemployerPlan if there is any potential withdrawal liability to the Borrower or any ofits ERISA Affiliates as a result of the withdrawal, or the receipt by the Borrower or any of its ERISAAffiliates of notice from any Multiemployer Plan that it is in reorganizationor insolvency pursuant to Section 4241 or 4245 of ERISA, or that itintends to terminate or has terminated under Section 4041A or 4042 ofERISA; (viii) the occurrence of an act or omission which could give riseto 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 RevenueCode or under Section 409, Section 502(c), (i) or (l), or Section 4071of ERISA in respect of any Employee Benefit Plan, in each case in an amountthat would be material; (ix) the assertion of a material claim (other thanroutine claims for benefits) against any Employee Benefit Plan or the assetsthereof, or against the Borrower or any of its ERISA Affiliates in connectionwith any Employee Benefit Plan; (x) receipt from the Internal Revenue Serviceof notice of the failure of any Pension Plan to qualify under Section 401(a) ofthe Internal Revenue Code, or the failure of any trust forming part of anyPension Plan to qualify for exemption from taxation under Section 501(a) ofthe 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 anyPension Plan.

 

**“Euro”** means thesingle currency of the members of the European Union from time to time thatadopt a single, shared currency.

 

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

 

**“Exchange Act”** means the Securities Exchange Act of1934, as amended from time to time, and any successor statute.

 

**“Facilities”** means any and allreal property (including all buildings, fixtures or other improvements locatedthereon) now, hereafter or heretofore owned, leased, operated or used by the Borrower or any of itsSubsidiaries or any of their respective predecessors or Affiliates.

 

**“Facility Fee”**shallhave 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, roundedupwards, if necessary, to the next higher 1/100 of 1%) equal to the weightedaverage of the rates on overnight federal funds transactions with members ofthe Federal Reserve System arranged by federal funds brokers on such day, aspublished by the Federal Reserve Bank of New York on the Business Day nextsucceeding such day; provided, (i) if such day is not a BusinessDay, the Federal Funds Rate for such day shall be such rate on suchtransactions on the next preceding Business Day as so published on the nextsucceeding Business Day, and (ii) if no such rate is so published on suchnext succeeding Business Day, the Federal Funds Rate for such day shall be theaverage rate charged to Administrative Agent, in its capacity as a Lender, onsuch day on such transactions as determined by the Administrative Agent.

 

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

 

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

 

**“Fiscal Quarter”** means a fiscalquarter of any Fiscal Year.

 

**“Fiscal Year”** means the fiscalyear of the Borrower and itsSubsidiaries ending on December 31, of each calendar year.  For purposes of this Agreement, anyparticular Fiscal Year shall be designated by reference to the calendar year inwhich such Fiscal Year ends.

 

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

 

**“Fund”** means any Person (other than a natural person) that is (or will be)engaged in making, purchasing, holding or otherwise investing in commercialloans 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 ofsuch 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 AdministrativeAgent 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 thelimitations on the application thereof set forth in Section 1.2, generallyaccepted accounting principles set forth in opinions and pronouncements of theAccounting Principles Board of the American Institute of Certified PublicAccountants and statements and pronouncements of the Financial AccountingStandards Board or in such other statements by such other entity as may beapproved by a significant segment of the United States accounting profession,in each case as the same are applicable to the circumstances as of the date ofdetermination.

 

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

 

**“Governmental Authority”**means any federal, state, municipal, national or other government, governmentaldepartment, commission, board, bureau, court, agency or instrumentality orpolitical subdivision thereof or any entity or officer exercising executive,legislative, judicial, regulatory or administrative functions of or pertainingto any government or any court, in each case whether associated with a state ofthe 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 anyGovernmental Authority.

 

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**“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 setforth in Section 7.

 

**“Hazardous Materials”** means anychemical, material or substance, (i) exposure to which is prohibited orlimited 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 tothe health and safety of the owners, occupants or any Persons in the vicinityof any Facility or to the indoor or outdoor environment.

 

**“Hazardous Materials Activity”**means any past,****current, proposed or threatenedactivity, event or occurrence involving any Hazardous Materials, including theuse, 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 actionor response action with respect to any of the foregoing.

 

**“Highest Lawful Rate”**shall havethe meaning ascribed to such term in Section 9.22.

 

**“Indebtedness”**, as applied toany Person, means (i) all indebtedness for borrowed money, (ii) thatportion of obligations with respect to Capital Leases that is classified as aliability on a balance sheet in conformity with GAAP, (iii) notes payableand drafts accepted representing extensions of credit whether or notrepresenting obligations for borrowed money, (iv) any obligation owed forall or any part of the deferred purchase price of property or services(excluding any such obligations incurred under ERISA), which purchase price is (a) duemore than six months from the date of incurrence of the obligation in respectthereof or (b) evidenced by a note or similar written instrument, (v) allindebtedness secured by any Lien on any property or asset owned or held by thatPerson regardless of whether the indebtedness secured thereby shall have beenassumed by that Person or is nonrecourse to the credit of that Person, (vi) theface amount of any letter of credit issued for the account of that Person or asto which that Person is otherwise liable for reimbursement of drawings; (vii) thedirect or indirect guaranty, endorsement (otherwise than for collection ordeposit in the ordinary course of business), co-making, discounting withrecourse or sale with recourse by such Person of the obligation of another; (viii) anyobligation of such Person the primary purpose or intent of which is to provideassurance to an obligee that the obligation of the obligor thereof will be paidor discharged, or any agreement relating thereto will be complied with, or theholders thereof will be protected (in whole or in part) against loss in respectthereof; and (ix) any liability of such Person for an obligation ofanother through any agreement (contingent or otherwise) (a) to purchase,repurchase or otherwise acquire such obligation or any security therefor, or toprovide funds for the payment or discharge of such obligation (whether in theform of loans, advances, stock purchases, capital contributions or otherwise)or (b) to maintain the solvency or any balance sheet item, level of incomeor financial condition of another if, in the case of any agreement

 

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described undersubclauses (a) or (b) of this clause (ix), the primary purpose orintent thereof is as described in clause (viii) above.  For the avoidance of any doubt, it is herebyunderstood and agreed that any Indebtedness owing by Hospira to Abbott or its Affiliates upon theconsummation of the Distribution pursuant to the Transition Marketing andDistribution Services Agreements, in respect of assets outside of the UnitedStates transferred from Abbott or its Affiliates to Hospira or its Subsidiariesconstitutes Indebtedness as defined herein.

 

**“Indemnitees”** shall have themeaning ascribed to such term in Section 9.3.

 

**“Indemnified Liabilities”** shallhave the meaning ascribed to such term in Section 9.3.

 

**“Interest Coverage Ratio”** meansthe ratio as of the last day of any Fiscal Quarter of (i) ConsolidatedAdjusted EBIT for the four-Fiscal Quarter period then ended, to (ii) ConsolidatedFinancing Expense for such four-Fiscal Quarter period.

 

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

 

**“Interest Period”** shall have themeaning ascribed to such term inSection 2.5B.

 

**“Interest Rate Agreement”** meansany interest rate swap agreement, interest rate cap agreement, interest ratecollar agreement or other similar agreement or arrangement.

 

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

 

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

 

**“Investment”** means (i) anydirect or indirect purchase or other acquisition by the Borrower or any of itsSubsidiaries of, or of a beneficial interest in, any Securities of any otherPerson, (ii) any direct or indirect redemption, retirement, purchase orother acquisition for value, by theBorrower or any of its Subsidiaries from any Person of any Capital Stockof such Person, (iii) any direct or indirect loan, advance (other thanadvances to employees for moving, entertainment and travel expenses, drawingaccounts and similar expenditures in the ordinary course of business) orcapital contribution by the Borrower orany of its Subsidiaries to any other Person, including all Indebtedness andaccounts receivable from that other Person that are not current assets or didnot arise from sales to that other Person in the ordinary course of business,and (iv) any other asset classified as an “investment” in accordance withGAAP.  The amount of any Investment shallbe the original cost of such Investment plus the cost of all additionsthereto, without any adjustments for increases or decreases in value, orwrite-ups, write-downs or write-offs with respect to such Investment.

 

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**“Irish Subsidiary”**meansHospira Limited,****an organizationorganized under the laws of Ireland.

 

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

 

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

 

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

 

**“Joinder Date”** means the date onwhich the conditions specified in Section 11 are satisfied or waived inaccordance with Section 9.6.

 

**“Joint Venture”** means a jointventure, partnership or other similar arrangement, whether in corporate, partnershipor other legal form; provided that in no event shall any corporateSubsidiary of any Person be considered a Joint Venture to which such Person isa party.

 

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

 

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

 

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

 

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

 

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

 

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

 

**“LIBOR”** means, for any InterestRate Determination Date, the offered rate in the London interbank market fordeposits in Dollars or the relevant Alternative Currency of amounts equal orcomparable to the Revolving Loans offered for a term comparable to suchInterest Period that appears on Telerate Page 3750 as of approximately11:00 A.M., London time

 

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(or such other page asmay replace such page on such service for the purpose of displaying therates at which such Dollar or Alternative Currency deposits are offered byleading banks in the London interbank deposit market), or if no quotationappears on Telerate Page 3750, the average rate per annum which theoffices of four leading banks selected by the Administrative Agent and locatedin London offer for deposits in Dollars or the relevant Alternative Currency****in the London interbank deposit market atapproximately 11:00 a.m. (London time).

 

**“LIBOR Rate Loan”** means any Loanbearing 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 leasein the nature thereof, and any agreement to give any security interest) and anyoption, trust or other preferential arrangement having the practical effect ofany of the foregoing.

 

**“Loan Documents”** means thisAgreement, the Fee Letter, the Agency Fee Letter, the Revolving Loan Notes, anyJoinder Agreement and any letter of credit application or reimbursementagreement executed by the Borrower infavor of the Issuing Bank relating to Letters of Credit.

 

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

 

**“Material Adverse Effect”** meansa material adverse effect upon (i) the business, operations, properties orcondition (financial or otherwise) of theBorrower and its Subsidiaries, taken as a whole, (ii) the abilityof the Borrower to perform, orof the Administrative Agent to enforce, any of the Obligations of the Borrower (including the Obligations underSection 7 hereof) or (iii) the legality, validity, binding effector enforceability against the Borrower(or any Subsidiary Borrower that has outstanding or has requested AlternativeCurrency Loans) of a Loan Document to which it is a party.

 

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

 

**“Moody’s”** meansMoody’s Investor Services, Inc.

 

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

 

**“Multiemployer Plan”** means anyEmployee 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 tomake contributions.

 

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

 

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**“Notice of Borrowing”**means a notice substantially in the form of Exhibit I annexedhereto delivered by any Credit Partyto the Administrative Agent pursuant to Section 2.1B with respect to aproposed Revolving Loan.

 

**“Obligations”** means allobligations of every nature of the Credit Parties from time to time owing to theAgents, the Lead Arrangers and the Lenders or any of them under the LoanDocuments.

 

**“Officer’s Certificate”** means,as applied to any corporation, a certificate executed on behalf of suchcorporation by any one of its chairman of the board (if an officer), itspresident, one of its vice presidents, its chief financial officer or itstreasurer or, as applied to any limited partnership, a certificate executed onbehalf of such limited partnership by the chairman of the board (if anofficer), the president, one of the vice presidents, the chief financialofficer or treasurer of the general partner of such limited partnership, or, ifthe general partner of such limited partnership is an individual, executed bysuch individual; provided that every Officer’s Certificate with respectto the compliance with a condition precedent to the making of any RevolvingLoans hereunder shall include:  (i) astatement that the officer making or giving such Officer’s Certificate has readsuch condition and any definitions or other provisions contained in thisAgreement relating thereto, (ii) a statement that, in the opinion of thesigner, he has made or has caused to be made such examination or investigationas is necessary to enable him to express an informed opinion as to whether ornot such condition has been complied with, and (iii) a statement as towhether, 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 ofincorporation or organization, as amended, and its by-laws, as amended, (ii) withrespect to any limited partnership, its certificate of limited partnership, asamended, and its partnership agreement, as amended, (iii) with respect toany general partnership, its partnership agreement, as amended, and (iv) withrespect to any limited liability company, its articles of organization, asamended, and its operating agreement, as amended.  In the event any term or condition of thisAgreement or any other Loan Document requires any Organizational Document to becertified by a secretary of state or similar governmental official, thereference to any such “Organizational Document” shall only be to a document ofa type customarily certified by such governmental official.

 

**“PBGC”** means the Pension BenefitGuaranty Corporation and any successor thereto.

 

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

 

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

 

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

 

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**“Person”** means and includesnatural persons, corporations, limited partnerships, general partnerships,limited liability companies, limited liability partnerships, joint stockcompanies, Joint Ventures, associations, companies, trusts, banks, trustcompanies, land trusts, business trusts or other organizations, whether or notlegal entities, and Governmental Authorities.

 

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

 

**“Prime Rate”** means the rate ofinterest as announced by the Administrative Agent from time to time as itsprime lending rate, as in effect from time to time.  The Prime Rate is a reference rate and doesnot necessarily represent the lowest or best rate actually charged to anycustomer.  The Administrative Agent orany other Lender may make commercial loans or other loans at rates of interestat, above or below the Prime Rate.

 

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

 

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

 

**“Projections”** means theprojections of the Borrower and its Subsidiaries on a consolidated basis forthe period from 2004 through and including 2008 and included in the informationmemorandum distributed to the Lenders in connection herewith.

 

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

 

**“Receivables Transaction Attributable Indebtedness”** means, with respect to any QualifiedReceivables Transaction on any date of determination, the unrecovered purchaseprice on such date of all assets sold, conveyed, pledged or otherwisetransferred by the Borrower or any wholly-owned Subsidiary of the Borrower tothe third-party conduit entity or other receivables credit provider under suchQualified Receivables Transaction.

 

**“Register”** shall have themeaning ascribed to such term in Section 2.4A.

 

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

 

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

 

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

 

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

 

**“Replacement Lender”** shall havethe meaning ascribed to such term in Section 2.12.

 

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

 

**“ResponsibleOfficer”** meansthe Chief Executive Officer, the Chief Financial Officer, the Treasurer or theGeneral Counsel of a Credit Party or any other officer of such Credit Partyresponsible for overseeing or reviewing compliance with the Agreement.

 

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

 

**“Revolving Commitment”**means the Dollar Amount of the commitment of a Lender to make or otherwise fundany Revolving Loan and to acquire participations in Letters of Credit hereunderand **“Revolving Commitments”**meanssuch commitments of all Lenders in the aggregate.  The amount of each Lender’s RevolvingCommitment, if any, is set forth on Schedule 2.1A or in theapplicable Assignment Agreement, subject to any adjustment or reductionpursuant to the terms and conditions hereof. The aggregate amount of the Revolving Commitments as of the EffectiveDate is $375,000,000.

 

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

 

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

 

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

 

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

 

**“S&P”** meansStandard & Poor’s Ratings Group, a division of The McGraw HillCorporation.

 

**“Securities”** means any stock, share,partnership interest, membership interest in a limited liability company,voting trust certificates, certificate of interest or participation in anyprofit-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 orinterim certificates for the purchase or acquisition of, or any right tosubscribe to, purchase or acquire, any of the foregoing.

 

**“Securities Act”** means theSecurities Act of 1933, as amended from time to time, and any successorstatute.

 

**“Separation and DistributionAgreement”** means that certain Separation and DistributionAgreement, dated as of April 12, 2004, by and between Abbott and theBorrower.

 

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

 

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

 

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

 

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

 

**“Subject Transaction”** shall havethe meaning ascribed to such term in Section 6.14D.

 

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

 

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

 

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

 

“**SurvivingObligations**” means contingent indemnification liabilities of theBorrower under the Loan Documents that are not yet due and payable.

 

**“Syndication Agents”**shall havethe meaning ascribed to such term inthe introduction to this Agreement.

 

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

 

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

 

**“TotalUtilization of Revolving Commitments”** means, as at any dateof determination, the sum of (i) the aggregate principal amount of alloutstanding Revolving****Loans plus(ii) the Letter of Credit Usage.

 

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

 

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

 

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

 

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

 

Except as otherwise expresslyprovided in this Agreement, all accounting terms not otherwise defined hereinshall have the respective meanings assigned to them in conformity withGAAP.  Calculations in connection withthe definitions, covenants and other provisions of this Agreement shall utilizeaccounting principles and policies in effect on the date hereof which are inconformity with those used to prepare the financial statements referred to in Section 4.4.  Financial statements and other informationrequired to be delivered by theBorrower to the Administrative Agent pursuant to clauses (i) and (ii) ofSection 5.1 shall be prepared in accordance with GAAP as in effect at thetime of such preparation.  In the eventthat a change in GAAP or other accounting principles and policies after thedate hereof affects in any material respect the calculations of the covenantscontained herein, the Lenders and theBorrower agree to negotiate in good faith to amend the affectedcovenants (and related definitions) to compensate for the effect of suchchanges so that the restrictions, limitations and performance standardseffectively imposed by such covenants, as so amended, are substantiallyidentical to the restrictions, limitations and performance standards imposed bysuch covenants as in effect on the date hereof; provided that, if theRequisite Lenders and the Borrower failto reach agreement with respect to such amendment within a reasonable period oftime following the date of effectiveness of any such change, calculation ofcompliance by the Borrower andits Subsidiaries with the covenants contained herein shall be determined inaccordance with GAAP, as in effect immediately prior to such change.

 

**1.3**                               **Other Definitional Provisions and Rules ofConstruction.**

 

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

 

**B.****            **References to “Sections” and subsections shall be toSections and subsections, respectively, of this Agreement unless otherwisespecifically provided.

 

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

 

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

 

**SECTION 2.**                            **AMOUNT AND TERMS OF COMMITMENTS AND LOANS**

 

**2.1**                               **Commitment; Making of Revolving Loan; Letters ofCredit**.

 

**A.****            ****Revolving Commitments.**

 

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

 

(ii)          Each Lender’s Revolving Commitment shall expire on theMaturity Date and all Revolving Loans and all other amounts owed hereunder withrespect to the Revolving Loans and the Revolving Commitments shall be paid infull no later than such date.  Amounts borrowedpursuant to this Section 2.1A may be repaid and reborrowed during theRevolving Commitment Period.

 

**B.**             Borrowing Mechanics.

 

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

 

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

 

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

 

(a)                                       the Currency;

 

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

 

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

 

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

 

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

 

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

 

(iii)       Notice of receipt of each Notice of Borrowing inrespect of Revolving Loans, together with the amount of each Lender’s Pro RataShare thereof, if any, together with the applicable interest rate, shall beprovided by the Administrative Agent to each applicable Lender by telefacsimilewith reasonable promptness, but (provided the Administrative Agent shall havereceived such notice by 11:00 a.m. (New York City time)) not later than2:00 p.m. (New York City time) on the same day as the Administrative Agent’sreceipt of such Notice of Borrowing from the applicable Credit Party.

 

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

 

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

 

(b)                                      if such Revolving Loan is to be madein an Alternative Currency, not later than 12:00 p.m. (London, Englandtime), in such Alternative Currency (in such funds as may then be customary forthe settlement of international transactions in such Alternative Currency) atthe Funding and Payment Office.

 

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

 

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

 

**2.2**                               **Issuance of Letters of Credit and Purchase ofParticipations Therein**.

 

**A.****             Letters of Credit.** During the Revolving Commitment Period, subject to the terms andconditions hereof, the Issuing Bank agrees to issue Letters of Credit for theaccount of the Borrower in the aggregate amount up to but not exceeding theLetter of Credit Sublimit; provided, (i) each Letter of Creditshall be denominated in Dollars; (ii) the stated amount of each Letter ofCredit shall not be less than $5,000,000 or such lesser amount as is acceptableto the Issuing Bank; (iii) after giving effect to such issuance, in noevent shall the Total Utilization of Revolving Commitments exceed the RevolvingCommitments then in effect; (iv) after giving effect to such issuance, inno event shall the Letter of Credit Usage exceed the Letter of Credit Sublimitthen in effect; (v) in no event shall any standby Letter of Credit have anexpiration date later than the earlier of (1) five Business Days prior tothe Maturity Date and (2) the date which is one year from the date ofissuance of such standby Letter of Credit; and (vi) in no event shall anycommercial Letter of Credit (x) have an expiration date later than the earlierof (1) five Business Days before the Maturity Date and (2) the datewhich is 180 days from the date of issuance of such commercial Letter of Creditor (y) be issued if such commercial Letter of Credit is otherwise unacceptableto the Issuing Bank in its reasonable discretion.  Subject to the foregoing, the Issuing Bankmay agree that a standby Letter of Credit will automatically be extended forone or more successive periods not to exceed one year each, unless the IssuingBank elects not to extend for any such additional period; provided, theIssuing Bank shall not extend any such Letter of Credit if it has receivedwritten notice that an Event of Default has occurred and is continuing at the timethe Issuing Bank must elect to allow such extension; provided, further,in the event a Funding Default exists, the Issuing Bank shall not be requiredto issue any Letter of Credit unless the Issuing Bank has entered intoarrangements satisfactory to it and the Borrower to eliminate the Issuing Bank’srisk with respect to the participation in Letters of Credit of the DefaultingLender, including by cash collateralizing such Defaulting Lender’s Pro RataShare of the Letter of Credit Usage.

 

**B.****             Notice of Issuance.** Whenever the Borrower desires the issuance of a Letterof Credit, it shall deliver to the Administrative Agent an Issuance Notice nolater than 12:00 p.m. (New York City time) at least three Business Days inadvance of the proposed date of issuance (in the case of standby letters ofcredit) or five Business Days in advance of the proposed date of issuance (inthe case of commercial letters of credit), or in each case such shorter periodas may be agreed to by the Issuing Bank in any particular instance.  Upon satisfaction or waiver of the applicableconditions set forth in Section 3.2, the Issuing Bank shall issue therequested Letter of Credit only in accordance with the Issuing Bank’s standardoperating procedures.  Upon the issuanceof any Letter of Credit or amendment or modification to a Letter of Credit, theIssuing Bank shall promptly notify each Lender of such issuance, which noticeshall be accompanied by a copy of such Letter of Credit or amendment ormodification to a Letter of Credit and the amount of such Lender’s respectiveparticipation in such Letter of Credit pursuant to Section 2.2E.

 

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**C.****             Responsibility of the Issuing Bank WithRespect to Requests for Drawings and Payments.**  In determiningwhether to honor any drawing under any Letter of Credit by the beneficiarythereof, the Issuing Bank shall be responsible only to examine the documentsdelivered under such Letter of Credit with reasonable care so as to ascertainwhether they appear on their face to be in accordance with the terms andconditions of such Letter of Credit.  Asbetween the Borrower and the Issuing Bank, theBorrower assumes all risks of the acts and omissions of, or misuse ofthe Letters of Credit issued by the Issuing Bank, by the respectivebeneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the Issuing Bankshall not be responsible for: (i) the form, validity, sufficiency,accuracy, genuineness or legal effect of any document submitted by any party inconnection 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 orsufficiency of any instrument transferring or assigning or purporting totransfer or assign any such Letter of Credit or the rights or benefitsthereunder or proceeds thereof, in whole or in part, which may prove to beinvalid or ineffective for any reason; (iii) failure of the beneficiary ofany such Letter of Credit to comply fully with any conditions required in orderto draw upon such Letter of Credit; (iv) errors, omissions, interruptionsor delays in transmission or delivery of any messages, by mail, cable, telegraph,telex or otherwise, whether or not they be in cipher; (v) errors ininterpretation of technical terms; (vi) any loss or delay in thetransmission or otherwise of any document required in order to make a drawingunder any such Letter of Credit or of the proceeds thereof; (vii) themisapplication by the beneficiary of any such Letter of Credit of the proceedsof any drawing under such Letter of Credit; or (viii) any consequencesarising from causes beyond the control of the Issuing Bank, including anyGovernmental Acts; none of the above shall affect or impair, or prevent thevesting of, any of the Issuing Bank’s rights or powers hereunder.  Without limiting the foregoing and infurtherance thereof, any action taken or omitted by the Issuing Bank under orin connection with the Letters of Credit or any documents and certificatesdelivered thereunder, if taken or omitted in good faith, shall not give rise toany liability on the part of the Issuing Bank to the Borrower.  Notwithstanding anything to the contrarycontained in this Section 2.2C, the Borrower shallretain any and all rights it may have against the Issuing Bank for anyliability arising out of the gross negligence or willful misconduct of theIssuing Bank.

 

**D.****             Reimbursement by the Borrower of AmountsDrawn or Paid Under Letters of Credit.**  In the eventthe Issuing Bank has determined to honor a drawing under a Letter of Credit, itshall immediately notify the Borrower and theAdministrative Agent, and the Borrower shall reimburse the Issuing Bankon or before the Business Day immediately following the date on which suchdrawing is honored (the **“Reimbursement Date”**) in an amount in Dollars and insame day funds equal to the amount of such honored drawing; provided,anything contained herein to the contrary notwithstanding, (i) unless theBorrower shall have notified the Administrative Agent and the IssuingBank prior to 10:00 a.m. (New York City time) on the date such drawing ishonored that the Borrower intends to reimburse the Issuing Bank forthe amount of such honored drawing with funds other than the proceeds ofRevolving Loans, the Borrower shall be deemed to have given a timely Notice ofBorrowing to the Administrative Agent requesting the Lenders to make RevolvingLoans that are Base Rate Loans on the Reimbursement Date in an amount inDollars equal to the amount of such honored drawing, and (ii) subject tosatisfaction or waiver of the applicable conditions specified in Section 3.2,the Lenders shall, on the Reimbursement Date, make Revolving Loans that areBase Rate Loans in

 

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

 

**E.****               Lenders’ Purchase of Participations inLetters of Credit.**  Immediately upon the issuance of each Letterof Credit, each Lender having a Revolving Commitment shall be deemed to havepurchased, and hereby agrees to irrevocably purchase, from the Issuing Bank aparticipation in such Letter of Credit and any drawings honored thereunder inan amount equal to such Lender’s Pro Rata Share (with respect to the RevolvingCommitments) of the maximum amount which is or at any time may become availableto be drawn thereunder.  In the eventthat the Borrower shall fail for any reason to reimbursethe Issuing Bank as provided in Section 2.2D, the Issuing Bank shallpromptly notify each Lender of the unreimbursed amount of such honored drawingand of such Lender’s respective participation therein based on such Lender’sPro Rata Share of the Revolving Commitments. Each Lender shall make available to the Issuing Bank an amount equal toits respective participation, in Dollars and in same day funds, at the officeof 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 thejurisdiction in which such office of the Issuing Bank is located) after thedate notified by the Issuing Bank.  Inthe event that any Lender fails to make available to the Issuing Bank on suchBusiness Day the amount of such Lender’s participation in such Letter of Creditas provided in this Section 2.2E, the Issuing Bank shall be entitled torecover such amount on demand from such Lender together with interest thereonfor three Business Days at the rate customarily used by the Issuing Bank forthe correction of errors among banks and thereafter at the Base Rate.  Nothing in this Section 2.2E shall bedeemed to prejudice the right of any Lender to recover from the Issuing Bankany amounts made available by such Lender to the Issuing Bank pursuant to this Section 2.2Ein the event that it is determined that the payment with respect to a Letter ofCredit in respect of which payment was made by such Lender constituted grossnegligence or willful misconduct on the part of the Issuing Bank.  In the event the Issuing Bank shall have beenreimbursed by other Lenders pursuant to this Section 2.2E for all or anyportion 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 amountspayable by it under this Section 2.2E with respect to such honored drawingsuch Lender’s Pro Rata Share of all payments subsequently received by theIssuing Bank from the Borrower in reimbursement of such honoreddrawing when such payments are received. Any such distribution shall be made to a Lender at its notice addressset forth on the signature pages hereto or at such other address as suchLender may request.

 

**F.****               Obligations Absolute.**  The obligation of theBorrower to reimburse the Issuing Bank for drawingshonored under the Letters of Credit issued by it and to repay any RevolvingLoans made by Lenders pursuant to Section 2.2D and the obligations ofLenders under Section 2.2E

 

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shall be unconditional and irrevocable and shall bepaid strictly in accordance with the terms hereof under all circumstancesincluding any of the following circumstances: (i) any lack of validity orenforceability of any Letter of Credit; (ii) the existence of any claim,set-off, defense or other right which the Borrower or anyLender may have at any time against a beneficiary or any transferee of anyLetter 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, thetransactions contemplated herein or any unrelated transaction (including anyunderlying transaction between the Borrower or one of its Subsidiaries and thebeneficiary for which any Letter of Credit was procured); (iii) any draftor other document presented under any Letter of Credit proving to be forged,fraudulent, invalid or insufficient in any respect or any statement thereinbeing untrue or inaccurate in any respect; (iv) payment by the IssuingBank under any Letter of Credit against presentation of a draft or otherdocument which does not strictly comply with the terms of such Letter ofCredit; (v) the occurrence of any Material Adverse Effect; (vi) anybreach hereof or any other Loan Document by any party thereto; (vii) anyother circumstance or happening whatsoever, whether or not similar to any ofthe foregoing; or (viii) the fact that an Event of Default or a PotentialEvent of Default shall have occurred and be continuing; provided, ineach case, that payment by the Issuing Bank under the applicable Letter ofCredit shall not have constituted gross negligence or willful misconduct of theIssuing Bank under the circumstances in question.

 

**G.****             Indemnification.** Without duplication of any obligation of theBorrower under Section 9.2 or 9.3, in addition to amounts payableas provided therein, the Borrower hereby agrees to protect,indemnify, pay and save harmless the Issuing Bank from and against any and allclaims, demands, liabilities, damages, losses, costs, charges and expenses(including reasonable fees, expenses and disbursements of counsel and, withoutduplication, allocated costs of internal counsel) which the Issuing Bank mayincur or be subject to as a consequence, direct or indirect, of (i) theissuance 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) thewrongful dishonor by the Issuing Bank of a proper demand for payment made underany Letter of Credit issued by it, or (ii) the failure of the Issuing Bankto honor a drawing under any such Letter of Credit as a result of anyGovernmental Act.

 

**2.3****                               ProRata Shares; Availability of Funds; UCP.**

 

**A.****             Pro Rata Shares.** All Revolving Loans shall be made, and all participations purchased, bythe Lenders (or, if applicable, by their Affiliates) simultaneously andproportionately to their respective Pro Rata Shares, it being understood thatno Lender shall be responsible for any default by any other Lender in suchother Lender’s obligation to make a Revolving Loan requested hereunder orpurchase a participation required hereby nor shall any Revolving Commitment ofany Lender be increased or decreased as a result of a default by any otherLender in such other Lender’s obligation to make a Revolving Loan requestedhereunder or purchase a participation required hereby.

 

**B.****             Availability of Funds.** Unless the Administrative Agent shall have been notified by any Lenderprior to the applicable Credit Date that such Lender does not intend to makeavailable to the Administrative Agent the amount of such Lender’s RevolvingLoan requested on such Credit Date, the Administrative Agent may assume thatsuch Lender has made such amount

 

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available to the Administrative Agent on such CreditDate and the Administrative Agent may, in its sole discretion, but shall not beobligated to, make available to the Borrower a corresponding amount on suchCredit Date.  If such correspondingamount is not in fact made available to the Administrative Agent by such Lenderor an Affiliate of such Lender, the Administrative Agent shall be entitled torecover such corresponding amount on demand from such Lender together withinterest thereon, for each day from such Credit Date until the date such amountis paid to the Administrative Agent, at the customary rate set by theAdministrative Agent for the correction of errors among banks for threeBusiness Days and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon theAdministrative Agent’s demand therefor, the Administrative Agent shall promptlynotify the Borrower and the Borrower shall immediately pay such correspondingamount to the Administrative Agent together with interest thereon, for each dayfrom such Credit Date until the date such amount is paid to the AdministrativeAgent, at the rate payable hereunder for Base Rate Loans.  Nothing in this Section 2.3B shall bedeemed to relieve any Lender from its obligation to fulfill its RevolvingCommitments hereunder or to prejudice any rights that the Borrower may haveagainst any Lender as a result of any default by such Lender hereunder.

 

**C.****             Uniform Customs and Practice forDocumentary Credits.**  It is hereby agreed that, except as otherwisespecified in any Letter of Credit, each commercial Letter of Credit shall besubject to the Uniform Customs and Practice for Documentary Credits and eachstandby Letter of Credit shall be subject to the International StandbyPractices (ISP 98).

 

**2.4****                               TheRegister; Evidence of Debt; Revolving Loan Notes.**

 

**A.****             Register**.

 

(i)             The Administrative Agent shall maintain at its Paymentand Funding Office a register for the recordation of the names and addresses ofthe Lenders and the Revolving Commitments and Revolving Loans of each Lenderfrom time to time (the **“Register”**).  The Register shall be available forinspection by the Credit Parties or any Lender at any reasonable time and fromtime to time upon reasonable prior notice. The Administrative Agent shall record in the Register the RevolvingCommitment and the Revolving Loan of each Lender, and each repayment orprepayment in respect of the principal amount of the Revolving Loan.  Any such recordation shall be prima facieevidence of the amount owed to such Lender hereunder; provided thatfailure to make any such recordation, or any error in such recordation, shallnot affect any Lender’s Revolving Commitment or the Obligations in respect ofany Revolving Loan.  The Credit Partieshereby designate Citicorp to serve as the Credit Parties’ agent solely forpurposes of maintaining the Register as provided in this Section 2.4, andthe Credit Parties hereby agree that, to the extent Citicorp serves in suchcapacity, Citicorp and its officers, directors, employees, agents andaffiliates shall constitute “Indemnitees” hereunder.

 

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

 

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

 

**B.****             Lenders’ Evidence of Debt.** Each Lender shall maintain on its internal records an account oraccounts evidencing the Obligations of each Credit Party to such Lender,including the amounts of the Revolving Loans made by it and each repayment andprepayment in respect thereof.  Any suchrecordation shall be conclusive and binding on the Credit Parties, absent manifesterror; provided, that the failure to make any such recordation, or anyerror in such recordation, shall not affect any Lender’s Revolving Commitmentsor the Obligations of the Credit Parties in respect of any applicable RevolvingLoans; and providedfurther, in the event of any inconsistencybetween the Register and any Lender’s records, the recordations in the Registershall govern.

 

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

 

**2.5****                               Intereston the Revolving Loans.**

 

**A.**             Rate of Interest;Type of Revolving Loan.

 

(i)             Subject to the provisions of Sections 2.5E, 2.8 and2.9, each Revolving Loan shall bear interest on the unpaid principal amountthereof from the date made through the Maturity Date (whether by accelerationor otherwise) at a rate equal to (a) if a Base Rate Loan, the Base Rate plusthe Applicable Margin or (b) if a LIBOR Rate Loan, the sum of LIBOR plusthe Applicable Margin.

 

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

 

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

 

(iii)       With respect to Dollar-Denominated Revolving Loans orAlternative Currency Loans denominated in Canadian Dollars, in the event theBorrower fails to specify a Base Rate Loan or a LIBOR Rate Loan in theapplicable Notice of Borrowing or Conversion/Continuation Notice, suchRevolving Loan (if outstanding as a LIBOR Rate Loan) will be automaticallyconverted into a Base Rate Loan on the last day of the then-current InterestPeriod for such Revolving Loan (or if outstanding as a Base Rate Loan willremain as, or (if not then outstanding) will be made as, a Base RateLoan).  As soon as practicable after11:00 a.m. (New York City time) on each Interest Rate Determination Date,the Administrative Agent shall determine (which determination shall, absentmanifest error, be final, conclusive and binding upon all parties) the interestrate that shall apply to the LIBOR Rate Loans for which an interest rate isthen being determined for the applicable Interest Period and shall promptlygive notice thereof (in writing or by telephone confirmed in writing) to theapplicable Credit Party and each Lender.

 

**B.****             Interest Periods.** In connection with each LIBOR Rate Loan, the applicable interest period(each an **“Interest Period”**) to be applicable to such RevolvingLoan 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 ofBorrowing or Conversion/Continuation Notice, initially commencing on the dateof the Revolving Loan or any Conversion/Continuation Date, as the case may be; providedthat

 

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

 

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

 

(iii)       any Interest Period that begins on the last BusinessDay of a calendar month (or on a day for which there is no numericallycorresponding 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 lastBusiness Day of a calendar month;

 

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

 

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

 

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

 

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**C.****             Interest Payments.** On each Interest Payment Date but in any event no less frequently thanquarterly, the applicable Credit Party shall pay an amount equal to theaggregate amount of interest that has accrued on such Credit Party’soutstanding Revolving Loans since the Effective Date or the last InterestPayment Date, as applicable.  In additioninterest on each Revolving Loan shall be payable in arrears upon any scheduledpayment or prepayment of the Revolving Loans (to the extent accrued on theamount being prepaid) and at maturity (including final maturity).

 

**D.****             Default Rate.**  Upon theoccurrence and during the continuation of any Event of Default, (i) theCredit Parties shall no longer have the option to request LIBOR Rate Loans, (ii) eachLIBOR Rate Loan shall convert to a Base Rate Loan at the end of the InterestPeriod then in effect for such LIBOR Rate Loan, (iii) upon request of theRequisite Lenders, the outstanding principal amounts of all LIBOR Rate Loansshall bear interest (including post-petition interest in any case or proceedingunder the Bankruptcy Code) at a rate per annum equal to two percent (2%) plusthe rate then applicable to LIBOR Rate Loans until the end of the applicableInterest Period and thereafter at a rate equal to two percent (2%) plus therate then applicable to Base Rate Loans, and (iv) upon request of theRequisite Lenders, all outstanding Base Rate Loans and, to the extent permittedby applicable law, other Obligations arising hereunder or under any other LoanDocument shall bear interest (including post-petition interest in any case orproceeding 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 otherObligations arising hereunder or under any other Loan Document.  Payment or acceptance of the increased ratesof interest provided for in this Section 2.5D is not a permittedalternative to timely payment and shall not constitute a waiver of any Event ofDefault or otherwise prejudice or limit any rights or remedies of Agents orLenders.

 

**E.**               Computation of Interest.

 

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

 

(ii)          For purposes of disclosure pursuant to the InterestAct (Canada), R.S. 1985, c I-15, the annual rates of interest or fees towhich the rates of interest or fees provided in this Agreement and eachRevolving Loan Note (and stated herein or therein as applicable to be computedon the basis of a 365-day year or any other period of time less than acalendar year)

 

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

 

**F.**               Conversion/Continuation.

 

(i)             Subject to Section 2.9 and so long as noPotential Event of Default or Event of Default shall have occurred and then becontinuing, each Credit Party shall have the option:

 

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

 

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

 

(ii)          Such Credit Party shall deliver aConversion/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 proposedconversion date (in the case of a conversion to a Base Rate Loan) and at leastthree Business Days in advance of the proposed Conversion/Continuation Date (inthe case of a conversion to, or a continuation of, a LIBOR Rate Loan).  Except as otherwise provided herein, aConversion/Continuation Notice for conversion to, or continuation of, any LIBORRate Loans (or telephonic notice in lieu thereof) shall be irrevocable on andafter the related Interest Rate Determination Date, and such Credit Party****shall be bound to effect a conversion orcontinuation in accordance therewith.

 

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

 

**H.****             Computation of Interest on ReimbursementObligations. **Interest payable pursuant to Section 2.5Gshall be computed on the basis of a 365/366-day year for the actualnumber of days elapsed in the period during which it accrues, and shall bepayable on demand or, if no demand is made, on the date on which the relateddrawing under a Letter of Credit is reimbursed in full.  Promptly upon receipt by the Issuing Bank ofany payment of interest pursuant to Section 2.5G, the Issuing Bank shalldistribute to each Lender, out of the interest received by the Issuing Bank inrespect of the period from the date such drawing is honored to,

 

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but excluding, the date on which the Issuing Bank isreimbursed for the amount of such drawing (including any such reimbursement outof the proceeds of any Revolving Loans), the amount that such Lender would havebeen entitled to receive in respect of the letter of credit fee that would havebeen payable in respect of such Letter of Credit for such period if no drawinghad been honored under such Letter of Credit. In the event the Issuing Bank shall have been reimbursed by the Lendersfor all or any portion of such honored drawing, the Issuing Bank shalldistribute to each Lender which has paid all amounts payable by it under Section 2.2Ewith respect to such honored drawing such Lender’s Pro Rata Share of anyinterest received by the Issuing Bank in respect of that portion of suchhonored drawing so reimbursed by the Lenders for the period from the date onwhich the Issuing Bank was so reimbursed by the Lenders to but excluding thedate on which such portion of such honored drawing is reimbursed by theBorrower.

 

**I.****                  Additional Interest on LIBOR RateLoans.** Each Credit Party shall pay to each Lender, solong as and to the extent such Lender shall be required under regulations ofthe Board of Governors of the Federal Reserve System to maintain reserves withrespect to liabilities or assets consisting of or including “Eurocurrencyliabilities” (as such term is defined in Regulation D), additional interest onthe unpaid principal amount of each Revolving Loan of such Lender that is aLIBOR Rate Loan, from the date of such Revolving Loan until such principalamount is paid in full, at an interest rate per annum equal at all times to theremainder obtained by subtracting (a) the LIBOR rate for the applicableInterest Period for such Revolving Loan from (b) the rate obtained bydividing such LIBOR rate by a percentage equal to 100% minus the ApplicableReserve Requirement (expressed as a percentage) of such Lender for suchInterest Period, payable on each date on which interest is payable on suchRevolving Loan.  Such Lender shall assoon as practicable provide notice to the Administrative Agent and the Borrowerof any such additional interest arising in connection with such Revolving Loan,which notice shall be conclusive and binding, absent demonstrable error.

 

**2.6****                               Fees.**

 

All fees referred to inthis Section 2.6 shall be paid to the Administrative Agent at its Fundingand Payment Office and upon receipt, the Administrative Agent shall promptlydistribute to each Lender its Pro Rata Share thereof.

 

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

 

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

 

(b)                                      Utilization Fee: From the Effective Date until theMaturity Date, in the event that outstanding Revolving Loans exceed 33% of thetotal Revolving Commitments, a utilization fee (the **“Utilization Fee”**) of 0.125% will be added to the ApplicableMargin for Revolving Loans.  TheUtilization Fee will be payable to each Lender ratably in accordance with itsthen current Revolving Commitment on each Interest Payment Date; and

 

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

 

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

 

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

 

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

 

(iii)       All fees referred to in Section 2.6(i) and2.6(ii)(a) shall be calculated on the basis of a 360-day year andthe 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 theRevolving Commitment Period, commencing on the first such date to occur afterthe Effective Date, and on the Maturity Date.

 

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

 

**2.7****                               ProvisionsRegarding Payments.**

 

**A.**             Voluntary Prepayments.

 

(i)             Any time and from time to time:

 

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

 

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

 

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(ii)          All such prepayments shall be made upon prior writtenor 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, onthe date of such prepayment; and

 

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

 

and, if such notice isgiven by telephone, such notice shall be promptly confirmed in writing to theAdministrative Agent (and the Administrative Agent will promptly transmit suchtelephonic or original notice for the Revolving Loans by telefacsimile ortelephone to each Lender).  Upon thegiving of any such notice, the principal amount of the Revolving Loansspecified in such notice shall become due and payable on the prepayment datespecified therein.

 

**B.**             Voluntary Revolving Commitment Reductions.

 

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

 

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

 

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

 

**D.****             Application ofPrepayments/Reductions.**  Unlessotherwise specified by the applicable Credit Party in a notice of prepayment,

 

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

 

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

 

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

 

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*third*, to cash collateralize Letters of Credit; and

 

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

 

**E.**                                      GeneralProvisions Regarding Payments.

 

(i)             Manner and Time of Payment. All payments by the Credit Parties of principal, interest, fees andother Obligations shall be made in Dollars or, with respect to AlternativeCurrency Loans, in the relevant Alternative Currency in same day funds, withoutdefense, set-off or counterclaim, free of any restriction or condition, anddelivered to the Administrative Agent not later than 12:00 p.m. (New YorkCity time) on the date due at the Funding and Payment Office for the account ofthe Lenders; funds received by the Administrative Agent after that time on suchdue date shall be deemed to have been paid by the applicable Credit Party onthe next succeeding Business Day.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**2.8****                               IncreasedCosts; Taxes.**

 

**A.****             Compensation for Increased Costs andTaxes.**  Subject to the provisions of Section 2.8B(which shall be controlling with respect to the matters covered thereby), inthe event that any Lender shall determine (which determination shall, absentmanifest error, be final and conclusive and binding upon all parties hereto)that any law, treaty or governmental rule, regulation or order, or any changetherein 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 GovernmentalAuthority, in each case that becomes effective after the date hereof, orcompliance by such Lender with any guideline, request or directive issued ormade after the date hereof by any central bank or other governmental orquasi-governmental authority (whether or not having the force of law):

 

(i)             subjects such Lender (or its applicable lendingoffice) to any additional Tax (other than any Tax on the overall net income ofsuch Lender) with respect to this Agreement or any of the other Loan Documentsor any of its obligations hereunder or thereunder or any payments to suchLender (or its applicable lending office) of principal, interest, fees or anyother 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 Corporationinsurance or similar requirement against assets held by, or deposits or otherliabilities in or for the account of, or advances or loans by, or other creditextended 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 RateLoans that are reflected in the definition of LIBOR); or

 

(iii)       imposes any other condition (other than with respectto 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 ofany of the foregoing is to increase the cost to such Lender of agreeing tomake, making or maintaining Revolving Loans hereunder or to reduce any amountreceived or receivable by such Lender (or its applicable lending office) withrespect thereto; then, in any such case, the Credit Parties shall promptly payto such Lender, upon receipt of the statement

 

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

 

**B.**                                    Withholdingof Taxes.

 

(i)             Payments to Be Free and Clear. All sums payable by any Credit Party under this Agreement and the otherLoan Documents shall (except to the extent required by law) be paid free andclear 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 orany political subdivision in or of the United States of America or any otherjurisdiction from or to which a payment is made by or on behalf of any CreditParty or by any federation or organization of which the United States ofAmerica 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 anydeduction or withholding on account of any such Tax from any sum paid orpayable by such Credit Party to the Administrative Agent or any Lender underany of the Loan Documents:

 

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

 

(b)                                      such Credit Party shall pay any suchTax 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 accountor (if that liability is imposed on the Administrative Agent or such Lender, asthe case may be) on behalf of and in the name of the Administrative Agent orsuch Lender;

 

(c)                                       the sum payable by such Credit Partyin respect of which the relevant deduction, withholding or payment is requiredshall be increased to the extent necessary to ensure that, after the making ofthat deduction, withholding or payment, the Administrative Agent or suchLender, as the case may be, receives on the due date and retains a net sumequal 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 payingany 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 itis required by clause (b) above to pay, such Credit Party shall deliver tothe Administrative Agent evidence reasonably satisfactory to the other affected

 

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parties of such deduction, withholding or payment andof 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 UnitedStates Person (as such term is defined in Section 7701(a)(30) of theInternal Revenue Code) for U.S. federal income tax purposes (a **“Non-US Lender”**) shall deliver to the Administrative Agentfor transmission to the Credit Parties, on or prior to the Effective Date (inthe case of each Lender listed on the signature pages hereof on theEffective Date) or on or prior to the date of the Assignment Agreement pursuantto which it becomes a Lender (in the case of each other Lender), and at suchother times as may be necessary in the determination of the Credit Parties orAdministrative 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 reasonablyrequested by the Credit Parties to establish that such Lender is not subject todeduction or withholding of United States federal income tax with respect toany payments to such Lender of principal, interest, fees or other amountspayable under any of the Loan Documents.

 

(b)                                      Each Lender required to deliver anyforms, certificates or other evidence with respect to United States federalincome tax withholding matters pursuant to Section 2.8B(iii)(a) herebyagrees, from time to time after the initial delivery by such Lender of suchforms, certificates or other evidence, whenever a lapse in time or change incircumstances renders such forms, certificates or other evidence obsolete orinaccurate in any material respect, that such Lender shall promptly (1) deliverto Administrative Agent for transmission to the Borrower two new originalcopies of Internal Revenue Service Form W-8BEN or W-8ECI, or aCertificate re Non-Bank Status and two (2) original copies of InternalRevenue Service Form W-8BEN (or any successor form), as the case maybe, properly completed and duly executed by such Lender, and such otherdocumentation required under the Internal Revenue Code and reasonably requestedby the Credit Parties to confirm or establish that such Lender is not subjectto deduction or withholding of United States federal income tax with respect topayments to such Lender under the Loan Documents or (2) notifyAdministrative Agent and the Borrower of its inability to deliver any suchforms, certificates or other evidence.

 

(c)                                       The Credit Parties shall not berequired to pay any additional amount to any Non-US Lender under clause (c) ofSection 2.8B(ii) if such Lender shall have failed to satisfy therequirements of clause (a) or (b)(1) of this Section 2.8B(iii); providedthat if such Lender shall have satisfied the requirements of Section 2.8B(iii)(a) onthe Effective Date or on the date of the Assignment Agreement pursuant to whichit became a Lender, as applicable, nothing in this Section 2.8B(iii)(c) shallrelieve the Credit Parties of its obligation to pay any additional amountspursuant to clause (c) of Section 2.8B(ii) in the event that, asa result of any change in any applicable law, treaty or governmental rule,regulation or order, or any change in the interpretation, administration orapplication thereof, such Lender is no longer properly entitled to deliverforms, certificates or other evidence at a subsequent date establishing thefact that such Lender is not subject to withholding as described herein.

 

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(iv)      If a payment is made by a Credit Party under theforegoing provisions of this Section 2.8(B) for the account of anyLender and such Lender, in its sole opinion, determines that it has irrevocablyreceived or been granted a credit against, or relief or remission from, orrepayment or refund of, any tax paid or payable by it in respect of orcalculated with reference to the deduction or withholding giving rise to suchadditional payment, such Lender shall, to the extent that it determines that itcan 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 suchLender shall, in its sole opinion, have determined is attributable to suchdeduction or withholding and will leave such Lender (after such payment) in noworse position than it would have been had such Credit Party not been requiredto make such deduction or withholding. Nothing contained herein shall (i) interfere with the right of aLender to arrange its tax affairs in whatever manner it thinks fit, (ii) obligeany Lender to disclose any information relating to its tax affairs or anycomputations in respect thereof or (iii) require any Lender to take orrefrain from taking any action that would prejudice its ability to benefit fromany other credit, relief, remission, repayment or refund to which it may beentitled.

 

(v)**        **Evidence of Exemption from Canadianor Irish Withholding Tax.  Any Lenderthat is entitled to an exemption from or reduction of withholding tax imposedby Canada or Ireland with respect to payments under this Agreement shalldeliver to the relevant Subsidiary Borrower (with a copy to the AdministrativeAgent) within 15 Business Days following receipt of the written notice referredto below, such properly completed and executed documentation as is reasonablyrequested by such Subsidiary Borrower or the Administrative Agent in order topermit such payments to be made with the benefit of such exemption or reduction(and shall make application to the relevant Governmental Authority forexemption or reduced rates if it is the party required by law to do so), provided that such Lender hasreceived written notice from such Subsidiary Borrower or the AdministrativeAgent identifying the requirements for such exemption or reduction, supplyingall applicable documentation and specifying the time period within whichdocumentation is to be provided under this Section 2.8B(iv) (or suchapplication is to be made).  Withoutlimiting the Lenders’ obligations under the preceding sentence, each Lenderagrees that it will, without material cost or other material disadvantage (asdetermined in such Lender’s good faith judgment), cooperate with suchSubsidiary Borrower to minimize the applicable withholding tax burdens inCanada and Ireland.  If any Lenderbecomes subject to any Tax because it fails to comply with this Section 2.8B(iv),each Subsidiary Borrower shall take such steps as such Lender shall reasonablyrequest to assist such Lender to recover such Tax.  The Administrative Agent agrees that it willprovide administrative and ministerial assistance to each relevant SubsidiaryBorrower with respect to any payments made by such Subsidiary Borrower to theLenders, and the calculation, reporting, withholding and remitting of any Taxesimposed by Canada or Ireland to the appropriate Governmental Authority.  Notwithstanding the foregoing, (a) theSubsidiary Borrowers shall retain primary responsibility for ascertaining therequirements of Applicable Law and providing to the Lenders the written noticedescribed in the first sentence of this Section 2.8B(iv), and (b) nofailure by the Administrative Agent to meet any obligations under this Section 2.8B(iv) shalloperate to excuse any Subsidiary Borrower from its obligations to the Lendersunder this Section 2.8B(iv).

 

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

 

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the Effective Date or in the interpretation oradministration thereof by any Governmental Authority, central bank orcomparable agency charged with the interpretation or administration thereof, orcompliance by such Lender (or its applicable lending office) with anyguideline, request or directive regarding capital adequacy (whether or not havingthe force of law) of any such Governmental Authority, central bank orcomparable agency issued after the Effective Date, has or would have the effectof reducing the rate of return on the capital of such Lender or any corporationcontrolling such Lender as a consequence of, or with reference to, such Lender’sRevolving Loans or Revolving Commitments, or participations therein or otherobligations hereunder with respect to the Revolving Loans to a level below thatwhich such Lender or such controlling corporation could have achieved but forsuch adoption, effectiveness, phase-in, applicability, change or compliance(taking into consideration the policies of such Lender or such controllingcorporation with regard to capital adequacy), then from time to time, theCredit Parties shall pay to such Lender such additional amount or amounts aswill compensate such Lender or such controlling corporation on an after-taxbasis for such reduction.  Such Lendershall deliver to the Credit Parties (with a copy to the Administrative Agent) awritten statement, setting forth in reasonable detail the basis for, andcalculation in reasonable detail of, the additional amounts owed to the Lenderunder this Section 2.8C, which statement shall be conclusive and bindingupon all parties hereto absent manifest error.

 

**2.9****                               SpecialProvisions 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 tothe matters covered:

 

**A.****             Inability to Determine Applicable InterestRate. **In the event that the Administrative Agent shall havedetermined (which determination shall be final and conclusive and binding uponall parties hereto), on any Interest Rate Determination Date with respect toany LIBOR Rate Loans, that by reason of circumstances affecting the interbankLIBOR market adequate and fair means do not exist for ascertaining the interestrate applicable to such Revolving Loans on the basis provided for in thedefinition of LIBOR Rate, the Administrative Agent shall on such date givenotice (by telefacsimile or by telephone confirmed in writing) to the CreditParties and each Lender of such determination, whereupon (i) no RevolvingLoans may be made as, or converted to, LIBOR Rate Loans until such time as theAdministrative Agent notifies the Credit Parties and the Lenders that thecircumstances giving rise to such notice no longer exist, and (ii) anyNotice of Borrowing or Conversion/Continuation Notice given by any Credit Partywith respect to the Revolving Loans in respect of which such determination wasmade shall be deemed to be rescinded by such Credit Party.

 

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

 

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Agreement which materially and adversely affect theinterbank LIBOR market or the position of such Lender in that market, then, andin any such event, such Lender shall be an **“Affected Lender”** and it shall on that day give notice (by telefacsimileor by telephone confirmed in writing) to the Credit Parties and theAdministrative Agent of such determination (which notice the AdministrativeAgent shall promptly transmit to each other Lender).  Thereafter (a) the obligation of theAffected Lender to make Revolving Loans as, or to convert Revolving Loans to,LIBOR Rate Loans shall be suspended until such notice shall be withdrawn by theAffected Lender, (b) to the extent such determination by the AffectedLender relates to a LIBOR Rate Loan denominated in Dollars, then beingrequested by a Credit Party pursuant to a Notice of Borrowing or aConversion/Continuation Notice, the Affected Lender shall make such RevolvingLoan as (or continue such Revolving Loan as or convert such Revolving Loan to,as the case may be) a Base Rate Loan, (c) the Affected Lender’s obligationto maintain its outstanding LIBOR Rate Loans (the **“Affected Loans”**) shall be terminated at the earlier to occur of theexpiration of the Interest Period then in effect with respect to the AffectedLoans or when required by law, and (d) the Affected Loans shallautomatically convert into Base Rate Loans on the date of suchtermination.  Notwithstanding theforegoing, to the extent a determination by an Affected Lender as describedabove relates to a LIBOR Rate Loan then being requested by a Credit Partypursuant to a Notice of Borrowing or a Conversion/Continuation Notice, suchCredit Party shall have the option, subject to the provisions of Section 2.9C,to rescind such Notice of Borrowing or Conversion/Continuation Notice as to allLenders by giving notice (by telefacsimile or by telephone confirmed inwriting) to the Administrative Agent of such rescission on the date on whichthe Affected Lender gives notice of its determination as described above (whichnotice of rescission the Administrative Agent shall promptly transmit to eachother Lender).  Except as provided in theimmediately preceding sentence, nothing in this Section 2.9B shall affectthe obligation of any Lender other than an Affected Lender to make or maintainRevolving Loans as, or to convert Revolving Loans to, LIBOR Rate Loans inaccordance with the terms hereof.

 

**C.****             Compensation For Breakage. **The Credit Parties shall compensate each Lender uponwritten request by such Lender (which request shall set forth the basis forrequesting such amounts and a calculation thereof in reasonable detail) for allreasonable losses, expenses and liabilities (including any interest paid bysuch Lender to lenders of funds borrowed by it to make or carry its LIBOR RateLoans and any loss, expense or liability sustained by such Lender in connectionwith the liquidation or re-employment of such funds, but excluding lostprofits) which that Lender may sustain: (i) if for any reason (other thana default by such Lender) a Revolving Loan that is a LIBOR Rate Loan does notoccur on a date specified therefor in a Notice of Borrowing or a telephonicrequest for borrowing, or a conversion to or continuation of any LIBOR RateLoan does not occur on a date specified therefor in a Conversion/ContinuationNotice or a telephonic request for conversion or continuation, (ii) if anyprepayment or other principal payment of, or any conversion of, any of itsLIBOR Rate Loans occurs on a date other than the last day of an Interest Periodapplicable to such LIBOR Rate Loan or (iii) if any prepayment of any LIBORRate Loan made by such Lender is not made on any date specified in a notice ofprepayment given by the Borrower.

 

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

 

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**E.****               Assumptions Concerning Funding of LIBORRate Loans.** Calculation of all amounts payable to a Lenderunder this Section 2.9 and under Section 2.8A shall be made as thoughthat Lender had actually funded each of its relevant LIBOR Rate Loans throughthe purchase of a LIBOR deposit bearing interest at the rate obtained pursuantto the definition of LIBOR in an amount equal to the amount of such LIBOR RateLoan and having a maturity comparable to the relevant Interest Period andthrough the transfer of such LIBOR deposit from an offshore office of that Lenderto 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 anymanner it sees fit and the foregoing assumptions shall be utilized only for thepurposes of calculating amounts payable under this Section 2.9 and under Section 2.8Aand 2.8C.

 

**2.10****                        MattersRelating to Currency Exchange Rates and Conversion of Amounts to AlternativeCurrencies.**

 

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

 

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

 

**C.****             Conversion of Amounts to ApplicableCurrencies.**To theextent funds received by the Administrative Agent (or debited from any Person’saccount with the Administrative Agent) must be converted into Dollars or anAlternative Currency for any payment required hereunder, the AdministrativeAgent shall effect such conversion on the applicable payment date on the basisof the Spot Rate then in effect.

 

**2.11****                        DefaultingLenders.**

 

Anything contained hereinto the contrary notwithstanding, in the event that any Lender defaults (a **“Defaulting Lender”**) in its obligation tofund (a **“Funding Default”**) any

 

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Revolving Loan orits portion of any unreimbursed payment under Section 2.2D (in each case,a **“Defaulted Loan”**), then (a) duringany Default Period with respect to such Defaulting Lender, such DefaultingLender shall be deemed not to be a “Lender” for purposes of voting on anymatters (including the granting of any consents or waivers) with respect to anyof the Loan Documents; (b) to the extent permitted by Applicable Law,until such time as the Default Excess with respect to such Defaulting Lendershall have been reduced to zero, (i) any voluntary prepayment of theRevolving Loans shall, if the applicable Credit Party so directs at the time ofmaking such voluntary prepayment, be applied to the Revolving Loans of otherLenders as if such Defaulting Lender had no Revolving Loans outstanding and theRevolving Exposure of such Defaulting Lender were zero, and (ii) anymandatory prepayment of the Revolving Loans shall, if the applicable CreditParty so directs at the time of making such mandatory prepayment, be applied tothe Revolving Loans of other Lenders (but not to the Revolving Loans of suchDefaulting Lender) as if such Defaulting Lender had funded all Defaulted Loansof such Defaulting Lender, it being understood and agreed that the applicableCredit Party shall be entitled to retain any portion of any mandatoryprepayment of the Revolving Loans that is not paid to such Defaulting Lendersolely as a result of the operation of the provisions of this clause (b); (c) suchDefaulting Lender’s Revolving Commitment and outstanding Revolving Loans andsuch Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage shall beexcluded for purposes of calculating the Facility Fee payable to Lenders inrespect of any day during any Default Period with respect to such DefaultingLender, and such Defaulting Lender shall not be entitled to receive anyFacility Fee pursuant to Section 2.6 with respect to such DefaultingLender’s Revolving Commitment in respect of any Default Period with respect tosuch Defaulting Lender; and (d) the Total Utilization of Loan RevolvingCommitments as at any date of determination shall be calculated as if such DefaultingLender had funded all Defaulted Loans of such Defaulting Lender.  No Revolving Commitment of any Lender shallbe increased or otherwise affected, and, except as otherwise expressly providedin this Section 2.11, performance by the Credit Parties of theirObligations shall not be excused or otherwise modified as a result of anyFunding Default or the operation of this Section 2.11.  The rights and remedies against a DefaultingLender under this Section 2.11 are in addition to other rights andremedies which the Credit Parties may have against such Defaulting Lender withrespect to any Funding Default and which the Administrative Agent or any Lendermay have against such Defaulting Lender with respect to any Funding Default.

 

**2.12****                        Removalor Replacement of a Lender.**

 

Anything contained hereinto the contrary notwithstanding, in the event that any Lender shall give noticeto the Credit Parties that such Lender is an Affected Lender or that suchLender is entitled to receive payments under Section 2.8 or 2.9, if thecircumstances which have caused such Lender to be an Affected Lender or whichentitle such Lender to receive such payments shall remain in effect, and suchLender shall fail to withdraw such notice within five (5) Business Daysafter receipt by such Lender of a written request for such withdrawal from aCredit Party; then, with respect to each such Lender (the **“Terminated Lender”**), the Credit Partiesmay, by giving written notice to the Administrative Agent and any TerminatedLender of its election to do so, elect to cause such Terminated Lender (andsuch Terminated Lender hereby irrevocably agrees) to assign its outstandingRevolving Loans in full to one or more Eligible Assignees (each a **“Replacement Lender”**) in accordance withthe provisions of Section 9.1 for a purchase price equal to theoutstanding principal amount of the Revolving Loans assigned and accruedinterest

 

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

 

**2.13****                        Mitigation.**

 

**A.****            **Each Lender agrees that, as promptly as practicableafter the officer of such Lender responsible for administering the RevolvingLoans of such Lender becomes aware of the occurrence of an event or theexistence of a condition that would cause such Lender to become an AffectedLender or that would entitle such Lender to receive payments under Section 2.8or 2.9, it will, to the extent not inconsistent with the internal policies ofsuch Lender and any applicable legal or regulatory restrictions, use reasonableefforts (i) to make, issue, fund or maintain the Revolving Commitments ofsuch Lender or the affected Revolving Loans of such Lender through anotherlending office of such Lender, or (ii) take such other measures as suchLender may deem reasonable, if as a result thereof the circumstances whichwould cause such Lender to be an Affected Lender would cease to exist or theadditional amounts which would otherwise be required to be paid to such Lenderpursuant to Section 2.8 or 2.9 would be materially reduced and if, asdetermined by such Lender in its sole discretion, the making, issuing, fundingor maintaining of such Revolving Commitments or Revolving Loans through suchother lending office or in accordance with such other measures, as the case maybe, would not otherwise adversely affect such Revolving Commitments orRevolving Loans or the interests of such Lender; provided that suchLender will not be obligated to utilize such other lending office pursuant tothis Section 2.13 unless the Credit Parties agree to pay all incrementalexpenses incurred by such Lender as a result of utilizing such other lendingoffice as described in clause (i) above. A certificate as to the amount of any such expenses payable by theCredit Parties pursuant to this Section 2.13 (setting forth in reasonabledetail the basis for requesting such amount and a calculation thereof inreasonable detail) submitted by such Lender to the Credit Parties (with a copyto the Administrative Agent) shall be conclusive absent manifest error.

 

**B.****            **Notwithstanding the provisions of Section 2.8, ifany Lender fails to notify the Borrower of any event or circumstance which willentitle such Lender to compensation pursuant to Section 2.8 within 365days after such Lender obtains knowledge of such event or circumstance, thensuch Lender shall not be entitled to compensation from the Borrower for anyamount arising prior to the date which is 365 days before the date on whichsuch Lender notifies the Borrower of such event or circumstance.

 

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**SECTION 3.**                            **CONDITIONS PRECEDENT**

 

**3.1****                               Conditionsto Effectiveness.**

 

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

 

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

 

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

 

(ii)          copies of the Organizational Documents, dated a recentdate prior to the Effective Date, certified as of the Effective Date (or arecent date prior to the Effective Date) by the appropriate governmentalofficial or the secretary (or other appropriate officer) of the Borrower, asapplicable;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**C.****             Payment of Amounts Due. **The Borrower shallhave paid to the Lead Arrangers and the Agents, all reasonable out-of-pocketcosts, 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.**                                    TheDistribution.

 

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

 

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

 

(iii)       The Administrative Agent shall have received evidencesatisfactory thereto that all governmental, shareholder and material thirdparty consents and approvals necessary in connection with the Distributionshall have been obtained and remain in effect.

 

(iv)      The Administrative Agent shall besatisfied that the proposed tax and accounting treatment of the Distributionand the proposed corporate and capital structure of the Borrower and itsSubsidiaries after giving effect to the Distribution, (A) does not differmaterially from the treatment and structure previously disclosed in writing bythe Borrower to the Administrative Agent and the Syndication Agents and (B) isotherwise reasonably satisfactory to the Administrative Agent and theSyndication Agents.

 

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

 

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

 

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

 

**G.**                                    Authorizationsand Consents.

 

(i)             The Borrower shall have obtained all GovernmentalAuthorizations and all consents of other Persons, in each case that arenecessary in connection with the transactions contemplated by the LoanDocuments, and each of the foregoing shall be in full force and effect and inform and substance reasonably satisfactory to the Administrative Agent and theLenders.  All applicable waiting periodsshall have expired without any action being taken or threatened by anycompetent authority which would restrain, prevent or otherwise impose materialadverse conditions on the transactions contemplated by the Loan Documents orthe financing thereof and no action, request for stay, petition for review orrehearing, reconsideration, or appeal with respect to any of the foregoingshall be pending, and the time for any applicable agency to take action to setaside its consent on its own motion shall have expired.

 

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

 

**H.****             Material Adverse Effect.**  Since December 31, 2003, there shall nothave occurred a Material Adverse Effect.

 

**I.****                  No Litigation.** (i) No action, suit, investigation,litigation, arbitration or proceeding (whether administrative, judicial orotherwise) affecting the Borrower or any of its Subsidiaries shall be pendingor threatened before any court, Governmental Authority or arbitrator that couldbe reasonably expected to, individually or in the aggregate, (A) have aMaterial Adverse Effect, other than the matters set forth in the Form 10or in the Borrower’s filings with the Securities and Exchange Commission (the **“Disclosed Litigation”**), (B) materially impair the transactionscontemplated by the Loan Documents or (C) in any manner call into questionor challenge the Distribution, this Agreement or the making of the RevolvingLoans and (ii) no material adverse change in the status, or financialeffect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation fromthat described in the Form 10 and in the Borrower’s filings with theSecurities and Exchange Commission shall have occurred.

 

**J.****               Solvency Assurances.** The Administrative Agent shall havereceived a Financial Condition Certificate from the chief financial officer ofthe Borrower, dated the Effective Date, substantially in the form of Exhibit Vannexed hereto and satisfactory to the Administrative Agent, and withappropriate attachments demonstrating that, before and after giving effect tothe Distribution and any Debt Issuance and the other transactions contemplatedby the Loan Documents, the Borrower and its Subsidiaries will be Solvent.

 

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**K.****           ****FinancialStatements; Projections. **The****Lenders shall have received from theBorrower in respect of itself and its Subsidiaries, (i) the historicalfinancial statements as provided in Section 4.4 of this Agreement, (ii) proforma consolidated****balancesheets of the Borrower and its Subsidiaries as of the Effective Date, preparedin accordance with GAAP and reflecting the consummation of the relatedfinancing and the other transactions contemplated by the Loan Documents, whichpro forma financial statements shall be in form and substance satisfactory toLenders and (iii) the Projections; it being acknowledged by the Lendersthat each of the foregoing have been delivered as of the date hereof.

 

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

 

**M.****          ****Evidence of Insurance.** The Administrative Agent shall have received a certificate from theBorrower’s insurance broker or other evidence satisfactory to it that allinsurance required to be maintained pursuant to Section 5.4 is in fullforce and effect.

 

**3.2****          Conditions Precedentto each Credit Extension**

 

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

 

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

 

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

 

**C.****           ****Representations andWarranties. **The representations and warrantiescontained herein (excluding, except on the Effective Date, the representationsand warranties made in the last sentence of Section 4.4 (FinancialCondition), the first sentence of Section 4.5 (Material Adverse Effect)and the first sentence of Section 4.9 (Litigation)) shall be true, correctand complete in all material respects on and as of the date of such CreditExtension to the same extent as though made on and as of that date, except tothe extent such representations and warranties specifically relate to anearlier date, in which case such representations and warranties shall have beentrue, correct and complete in all material respects on and as of such earlierdate.

 

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

 

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

 

**SECTION 4.**         **REPRESENTATIONS AND WARRANTIES**

 

In order to induce theAgents and the Lenders to enter into this Agreement and to induce the Lendersto make each Credit Extension hereunder, each Credit Party represents andwarrants to each Agent, each Lender and the Issuing Bank that the followingstatements are true, correct and complete:

 

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

 

**A.****           ****Organization andPowers.** Each CreditParty and each of their respective Subsidiaries is duly organized,validly existing and in good standing, as applicable, under the laws of itsjurisdiction of organization.  EachCredit Party and each of their respective Subsidiaries has all requisitepower and authority to own, lease and operate its properties, to carry on itsbusiness as now conducted and as proposed to be conducted, to enter into theLoan Documents to which it is a party and to carry out the transactionscontemplated thereby.

 

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

 

**C.****           ****Subsidiaries. **Schedule 4.1C sets forth a list of the Subsidiaries of eachCredit Party as of the Effective Date.

 

**4.2****          Authorization ofBorrowing, etc.**

 

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

 

**B.****           ****No Conflict.** The execution, delivery and performance by each Credit Party****of each Loan Document to which it isa party and the consummation of the transactions contemplated by each LoanDocument to which it is a party do not and will not (i) violate anyprovision of any Applicable Law with respect to such Credit Party or any of itsSubsidiaries, any of the Organizational Documents of such Credit Party or anyof its Subsidiaries or any order, judgment or decree of any GovernmentalAuthority binding on such Credit Party or any of its Subsidiaries, except tothe extent such violation could not be reasonably expected to have a MaterialAdverse Effect, (ii) conflict with, result in a breach of or constitute(with due notice or lapse of time or both) a default under any ContractualObligation of such Credit Party or any of its Subsidiaries, except to the extentsuch conflict, breach or default could not reasonably be expected to have aMaterial Adverse Effect, (iii) result in or require the creation orimposition of any Lien upon any of the properties or assets of such CreditParty or any of its Subsidiaries, or (iv) require any approval ofstockholders, partners or members or any approval or consent of any Personunder

 

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

 

**C.****           ****GovernmentalConsents.**  The execution, delivery and performance byeach Credit Party of each Loan Document to which it is a party and****the consummation of the transactionscontemplated by each Loan Document to which it is a party do not and will notrequire any Governmental Authorization.

 

**D.****           ****Binding Obligation.** Each of the Loan Documents to which it is a party has been duly executedand delivered by each Credit Party and is the legally valid and bindingobligation of each Credit Party, enforceable against each Credit Party inaccordance with its respective terms, except as may be limited by bankruptcy,insolvency, reorganization, moratorium or similar laws relating to or limitingcreditors’ rights generally or by equitable principles relating toenforceability.

 

**4.3****          Valid Issuance ofSecurities.**

 

The Capital Stock of theBorrower and each of its Subsidiaries has been duly and validly issued, fullypaid and nonassessable.

 

**4.4****          Financial Condition.**

 

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

 

**4.5****          No Material AdverseChange; No Restricted Payments.**

 

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

 

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**4.6****          Indebtedness.**

 

Schedule 4.6****is a complete and correct listing of allIndebtedness of the Borrower and its Subsidiaries, other than Indebtednesspermitted by Section 6.2 (excluding Section 6.2(ii)), in excess of$1,000,000 as of the Effective Date.  TheBorrower and its Subsidiaries have performed and are in compliance with all ofthe terms of such Indebtedness and all instruments and agreements relatingthereto, and no default or event of default, or event or condition which withnotice or lapse of time or both would constitute such a default or event ofdefault on the part of the Borrower or any of its Subsidiaries exists withrespect to any such Indebtedness.

 

**4.7****          Title to Properties;Liens.**

 

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

 

**4.8****          Intellectual PropertyMatters.**

 

Except where the failureto 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 allfranchises, licenses, copyright registrations, copyright applications, issuedpatents, patent applications, trademarks, trademark applications, trademarkregistrations, trademark rights, service marks, service mark applications,service mark rights, trade names, trade name rights, copyrights and rights withrespect to the foregoing which are required to conduct its business.  No event has occurred which permits, or afternotice or lapse of time or both would permit, the revocation or termination ofany 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 forinfringement under Applicable Law with respect to any such rights as a resultof its business operations except to the extent any such revocation,termination, or infringement could not reasonably be expected to have a MaterialAdverse Effect.

 

**4.9****          No Litigation;Compliance with Laws.**

 

Except for the DisclosedLitigation, there are no actions, suits, proceedings (whether administrative,judicial or otherwise), litigations, arbitrations or governmentalinvestigations (whether or not purportedly on behalf of the Borrower or any ofit Subsidiaries) at law or in equity, or before or by any GovernmentalAuthority, domestic or foreign (including any Environmental Claims), that arepending or, to the knowledge of the Borrower, threatened against or affectingthe Borrower or any of its Subsidiaries or any property of the Borrower or anyof its Subsidiaries and that, individually or in the aggregate, couldreasonably be expected to result in a Material Adverse Effect.  Neither the Borrower nor any of itsSubsidiaries (i) is in 

 

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

 

**4.10****        Payment of Taxes.**

 

Except as otherwisepermitted under Section 5.5, all federal income Tax and other material Taxreturns and reports of the Borrower and its Subsidiaries required to be filed byany of them have been timely filed, and all Taxes shown on such Tax returns tobe due and payable and all material assessments, fees and other governmentalcharges upon the Borrower and its Subsidiaries and upon their respectiveproperties, assets, income, businesses and franchises which are due and payablehave been paid when due and payable. Neither the Borrower nor any of its Subsidiaries knows of any proposedTax assessment against the Borrower or any of its Subsidiaries which is notbeing actively contested by the Borrower or such Subsidiary in good faith andby appropriate proceedings; provided, such reserves or other appropriateprovisions, if any, as shall be required in conformity with GAAP shall havebeen made or provided therefor.

 

**4.11****        Employee Matters.**

 

Neither the Borrower norany of its Subsidiaries is engaged in any unfair labor practice that couldreasonably be expected to have a Material Adverse Effect.  There is (a) no unfair labor practicecomplaint pending against the Borrower or any of its Subsidiaries, or to thebest knowledge of the Borrower, threatened against any of them before theNational Labor Relations Board and no grievance or arbitration proceedingarising out of or under any collective bargaining agreement that is so pendingagainst the Borrower or any of its Subsidiaries or to the knowledge of theBorrower, threatened against any of them, (b) no strike or work stoppage inexistence or threatened involving the Borrower or any of its Subsidiaries, and (c) tothe knowledge of the Borrower, no union representation question existing withrespect to the employees of the Borrower or any of its Subsidiaries and, to theknowledge of the Borrower, no union organization activity that is taking place,except (with respect to any matter specified in clause (a), (b) or (c) above,either individually or in the aggregate) such as could not reasonably beexpected to have a Material Adverse Effect.

 

**4.12****        No Default.**

 

Neither the Borrower norany of its Subsidiaries is in default in the performance, observance orfulfillment of any of the obligations, covenants or conditions contained in anyof its Contractual Obligations, and no condition exists that, with the givingof notice or the lapse of time or both, would constitute such a default, exceptwhere the consequences, direct or indirect, of such default or defaults, ifany, could not reasonably be expected to have a Material Adverse Effect.

 

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**4.13****        Governmental Regulation.**

 

Neither the Borrower norany of its Subsidiaries is subject to regulation under the Public UtilityHolding Company Act of 1935, the Federal Power Act or the Investment CompanyAct of 1940 or under any federal or state statute or regulation which may limitits ability to incur Indebtedness or which may otherwise render all or anyportion of the Obligations unenforceable. Neither the Borrower nor any of its Subsidiaries is a “registeredinvestment company” or a company “controlled” by a “registered investmentcompany” or a “principal underwriter” of a “registered investment company” assuch terms are defined in the Investment Company Act of 1940.

 

**4.14****        Securities Activities.**

 

Neither the Borrower norany of its Subsidiaries is engaged principally, or as one of its importantactivities, in the business of extending credit for the purpose of purchasingor carrying any Margin Stock.  No part ofthe proceeds of the Loans will be used to purchase or carry any Margin Stock orto extend credit to others for the purpose of purchasing or carrying any MarginStock in violation of the provisions of Regulation T, U or X of the Board ofGovernors of the Federal Reserve System.

 

**4.15****        Employee Benefit Plans.**

 

**A.****           **Each of the Borrower and its ERISAAffiliates is in material compliance with all applicable provisions andrequirements of ERISA and the Internal Revenue Code and the regulations andpublished interpretations thereunder with respect to each Employee BenefitPlan, and have performed all their obligations under each Employee Benefit Planin all material respects.  Each EmployeeBenefit Plan which is intended to qualify under Section 401(a) of theInternal Revenue Code has received a favorable determination letter from theInternal Revenue Service or has submitted or will submit a request for such adetermination 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 beenor is expected to be incurred by the Borrower or any of its ERISA Affiliateswith respect to any Employee Benefit Plan, and no ERISA Event has occurred oris reasonably expected to occur, the liability for which has not been satisfiedin full or is immaterial in amount.

 

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

 

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

 

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

 

**4.16****        Certain Fees.**

 

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

 

**4.17****        EnvironmentalProtection.**

 

**A.****           **Neither the Borrower nor any of itsSubsidiaries nor any of their respective Facilities or operations is subject toany outstanding written order, consent decree or settlement agreement with anyPerson relating to any Environmental Law, any Environmental Claim, or anyHazardous Materials Activity that, individually or in the aggregate, couldreasonably be expected to have a Material Adverse Effect.

 

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

 

**C.****           **There are and, to the Borrower’s andeach of its Subsidiaries’ knowledge, have been no conditions, occurrences, orHazardous Materials Activities which could reasonably be expected to form thebasis of an Environmental Claim against the Borrower or any of its Subsidiariesthat, individually or in the aggregate, could reasonably be expected to have aMaterial Adverse Effect.

 

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

 

**E.****            **Neitherthe Borrower nor any of its Subsidiaries nor, to the knowledge of the Borrower,any predecessor of the Borrower or any Subsidiary of such predecessor, hasfiled any notice under any Environmental Law indicating past or presenttreatment of Hazardous Materials at any Facility, and none of the Borrower’snor any of its Subsidiaries’ operations involves the generation,transportation, treatment, storage or disposal of hazardous waste, as definedunder 40 C.F.R. Parts 260 270 or any state equivalent, except to the extentthat any of the foregoing could not reasonably be expected to have a MaterialAdverse Effect.

 

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**F.****            **No eventor condition has occurred or is occurring with respect to the Borrower or anyof its Subsidiaries relating to any Environmental Law, any Release of HazardousMaterials, or any Hazardous Materials Activity which individually or in theaggregate has had, or could reasonably be expected to have, a Material AdverseEffect.

 

**4.18****        Solvency.**

 

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

 

**4.19****        Pari Passu.**

 

The Obligations and anyother claims of the Lead Arrangers, the Agents and the Lenders arisinghereunder or under any of the Loan Documents rank at least *pari**passu*with the claims of all of the Credit Parties’ and their Subsidiaries’ othersenior unsecured creditors, except those creditors whose claims are preferredby any bankruptcy, insolvency, reorganization, moratorium or similar lawsrelating to or limiting creditors’ rights generally.

 

**4.20****        Restrictions.**

 

Thereare no contractualrestrictions on any Credit Party or any of their Subsidiaries which prohibit orotherwise restrict the transfer of cash or other assets from any suchSubsidiary to such Credit Party, other than prohibitions or restrictionspermitted under Section 6.4.

 

**4.21****        Related Agreements.**

 

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

 

**B.****           ****Representations andWarranties. **Except to the extent otherwiseexpressly set forth herein or in the schedules hereto, and subject to thequalifications set forth therein, each of the representations and warrantiesgiven by the Borrower or any Subsidiary of the Borrower in any RelatedAgreement is true and correct in all material respects as of the Effective Date(or as of any earlier date to which such representation and warrantyspecifically relates).  Notwithstandinganything in any Related Agreement to the contrary, the representations andwarranties set forth in this Section 4.21 shall, solely for purposeshereof, survive the Effective Date for the benefit of Lenders.

 

**C.****           ****Governmental Authorizations. **On the Effective Date, all Governmental Authorizationsand all other authorizations, approvals and consents of any other Personrequired by the Related Agreements or to consummate the Distribution have beenobtained and are in full force and effect.

 

**D.****           ****Conditions Precedent. **On the Effective Date, (i) all of the conditionsto effecting or consummating the Distribution set forth in the RelatedAgreements have been duly satisfied or, with the consent of the AdministrativeAgent and the Syndication Agents, waived, and (ii) the 

 

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

 

**4.22****        Disclosure.**

 

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

 

**SECTION 5.**         **AFFIRMATIVE COVENANTS**

 

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

 

**5.1****          Financial Statementsand Other Reports.**

 

The Borrower will deliverto Administrative Agent:

 

(i)    Quarterly Financial Statements: as soon as available, and in anyevent within 45 days after the end of each of the first three (3) FiscalQuarters of each Fiscal Year, the unaudited consolidated balance sheet of theBorrower and its Subsidiaries as at the end of such Fiscal Quarter and therelated consolidated statements of income, stockholders’ equity and cash flowsof the Borrower and its Subsidiaries for such Fiscal Quarter and for the periodfrom the beginning of the then-current Fiscal Year to the end of such FiscalQuarter, setting forth in each case in comparative form the corresponding figuresfor the corresponding periods of the previous Fiscal Year, all in reasonabledetail and certified by the chief financial officer of the Borrower as fairlypresenting, in all material respects, the financial condition of the Borrowerand its Subsidiaries as at the date indicated and the results of theiroperations and cash flows for the periods indicated in conformity with GAAP,subject to the absence of footnotes and changes 

 

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

 

(ii)   Annual Financial Statements: as soon as available, and in any event within 90 days after the end ofeach Fiscal Year, (i) the consolidated balance sheets of the Borrower andits Subsidiaries as at the end of such Fiscal Year and the related consolidatedstatements of income, stockholders’ equity and cash flows of the Borrower andits Subsidiaries for such Fiscal Year, setting forth in each case incomparative form the corresponding figures for the previous Fiscal Year, inreasonable detail and certified by the chief financial officer of the Borroweras fairly presenting, in all material respects, the financial condition of theBorrower and its Subsidiaries as at the date indicated and the results of theiroperations and cash flows for the periods indicated; and (ii) with respectsuch consolidated financial statements a report thereon of Deloitte and ToucheLLP or other independent certified public accountants of recognized nationalstanding selected by the Borrower, and reasonably satisfactory to theAdministrative Agent (which report shall be unqualified as to going concern andscope of audit, and shall state that such consolidated financial statementsfairly present, in all material respects, the consolidated financial positionof the Borrower and its Subsidiaries as at the dates indicated and the resultsof their operations and their cash flows for the periods indicated inconformity with GAAP applied on a basis consistent with prior years (except asotherwise disclosed in such financial statements) and that the examination bysuch accountants in connection with such consolidated financial statements hasbeen made in accordance with generally accepted auditing standards);

 

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

 

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

 

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

 

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(vi)  Notice of Litigation: promptly upon (and in any event within five (5) Business Daysafter) any officer of any Credit Party obtaining knowledge of (a) theinstitution of, or non-frivolous threat of, any action, suit, proceeding,order, consent decree, settlement (whether administrative, judicial orotherwise), governmental investigation or arbitration against or affecting theBorrower 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 materialdevelopment in any such Proceeding that, in the case of either (a) or (b) ifadversely determined, could be reasonably expected to have a Material AdverseEffect, or seeks to enjoin or otherwise prevent the consummation of, or torecover any damages or obtain relief as a result of, the transactionscontemplated hereby, written notice thereof together with such otherinformation as may be reasonably available to the Borrower or such Subsidiaryto enable Lenders and their counsel to evaluate such matters;

 

(vii)Notice Regarding Contractual Obligations: promptly (and in any event within five (5) Business Days) after anyContractual Obligation of any Credit Party or any of its Subsidiaries isterminated or amended, except to the extent such termination or amendment couldnot reasonably be expected to have a Material Adverse Effect;

 

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

 

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

 

(x)    [Reserved.]

 

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

 

(xii)  Public Filings:  promptlyafter the same become publicly available, copies of all periodic and otherreports, proxy statements and other materials filed by the Borrower or any ofits Subsidiaries with the Securities and Exchange Commission, or any GovernmentalAuthority succeeding to any or all of the functions of the Securities andExchange Commission, or distributed by the Borrower to its shareholdersgenerally; and

 

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

 

**5.2****          Books and Records;Lenders Meetings.**

 

The Borrower will, andwill cause each of its Subsidiaries to keep proper books of records and accountin which full, true and correct entries in all material respects in conformitywith GAAP consistently applied shall be made of all material dealings andtransactions in relation to its business and activities and permitrepresentatives or agents of the Administrative Agent or any Lender to visitand inspect any of its properties or assets and examine and make abstracts fromany of its books and records upon reasonable prior notice during normalbusiness hours and as often as may reasonably be desired, and to discuss thebusiness, operations, properties and financial and other condition of theBorrower and its Subsidiaries with officers and employees of the Borrower and independentpublic accountants of the Borrower and its Subsidiaries so long as the Borroweris provided the opportunity to participate in such discussions.  The Borrower will, upon the request of theAdministrative Agent or Requisite Lenders, participate in a meeting of theAdministrative Agent and the Lenders once during each Fiscal Year to be held atthe Borrower’s corporate offices (or at such other location as may be agreed toby the Borrower and the Administrative Agent) at such time as may be agreed to bythe Borrower and the Administrative Agent.

 

**5.3****          Existence.**

 

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

 

**5.4****          Insurance.**

 

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

 

**5.5****          Payment of Taxes andClaims.**

 

The Borrower will, andwill cause each of its Subsidiaries to, pay all federal income Taxes and othermaterial Taxes imposed upon it or any of its properties or assets or in respectof any of its income, businesses or franchises before any penalty or fineaccrues thereon; provided, 

 

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

 

**5.6****          Payment andPerformance of Obligations.**

 

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

 

**5.7****          Maintenance ofProperties.**

 

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

 

**5.8****          Compliance with Laws.**

 

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

 

**5.9****          Use of Proceeds.**

 

**A.****           ****Proceeds of Loans.**  The proceeds of each Credit Extension shall beused for general corporate purposes.

 

**B.****           ****Margin Regulations.** No part of the proceeds of the Revolving Loans made to a Credit Partywill be used to purchase or carry any Margin Stock or to extend credit to othersfor the purpose of purchasing or carrying any Margin Stock in violation of theprovisions of Regulation T, U or X of the Board of Governors of the FederalReserve System.

 

**5.10****        Ownership of SubsidiaryBorrowers.**

 

TheBorrower will, at all times, own, directly or indirectly, 100% of theCapital Stock of each Subsidiary Borrower.

 

**5.11****        Claims *Pari Passu**.***

 

The Borrower shall ensurethat at all times the Obligations and any other claims of the Lead Arrangers,the Agents and the Lenders arising hereunder or under any of the other LoanDocuments rank at least *pari**passu* with the claims of all of the CreditParties’ or their 

 

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

 

**5.12****        Further Assurances.**

 

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

 

**SECTION 6.  NEGATIVE COVENANTS**

 

The Borrower covenantsand agrees that, so long as the Revolving Commitments hereunder shall remain ineffect and until payment in full of all Obligations (other than SurvivingObligations) and cancellation or expiration of all Letters of Credit, unlessthe 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 toperform, 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 anyproperty 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 6.1hereto and other Liens securing Indebtedness existing on the Effective Date theindividual principal amount of which does not exceed $500,000;

 

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

 

(iii)  statutory Liens of landlords, banks (including rightsof set-off), carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law, in each case incurred in the ordinarycourse of business for amounts not yet overdue or for amounts that are overdueand that (in the case of any such amounts overdue for a period in excess offive days) are being contested in good faith by appropriate proceedings, solong as such reserves or other appropriate provisions, if any, as shall berequired by GAAP shall have been made for any such contested amounts;

 

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

 

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

 

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

 

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

 

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

 

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

 

(ix)   Liens in favor of customs and revenue authoritiesarising as a matter of law to secure payment of customs duties in connectionwith the importation of goods;

 

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

 

(xi)   Liens on assets of Personsacquired 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 notcreated in anticipation thereof;

 

(xii)  Liens incurred in connectionwith Qualified Receivables Transactions; and

 

(xiii)Liens not otherwisepermitted by the foregoing clauses of this Section 6.1 securingobligations in an aggregate principal amount at any timeoutstanding not to exceed 10% of Consolidated Net Worth.

 

Notwithstanding any of theforegoing exceptions, the Credit Parties will not, and will not permit any oftheir Subsidiaries to, create, incur, assume or suffer to exist any Lien uponthe Capital 

 

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

 

**6.2****          Indebtedness.**

 

The Borrower shall notpermit any of its Subsidiaries to, directly or indirectly, create, incur,assume or guaranty, or otherwise become or remain directly or indirectly liablewith respect to, any Indebtedness, except:

 

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

 

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

 

(iii)  Indebtedness arising from the honoring by a bank orother financial institution of a check, draft or similar instrument drawnagainst insufficient funds in the ordinary course of business, providedthat such Indebtedness is extinguished within seven (7) Business Days ofits incurrence;

 

(iv)  Indebtedness owed to (including obligations in respectof letters of credit or bank guarantees or similar instruments for the benefitof) any Person providing workers’ compensation, health, disability or otheremployee benefits or property, casualty or liability insurance to the Borroweror any of its Subsidiaries, pursuant to reimbursement or indemnificationobligations to such Person, provided that upon the incurrence ofIndebtedness with respect to reimbursement obligations regarding workers’compensation claims, such obligations are reimbursed not later than 30 daysfollowing such incurrence;

 

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

 

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(vi)  Indebtedness which may be deemed to exist pursuant toany guaranties, performance, surety, statutory, appeal or similar obligationsincurred in the ordinary course of business of the Borrower and itsSubsidiaries;

 

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

 

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

 

(ix)   the Obligations; and

 

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

 

**6.3****          Acquisitions.**

 

The Borrower will not, and will not permitany of its wholly-owned Subsidiaries to, purchase or otherwise acquire (bymerger or otherwise) all or substantially all of the assets of, all of theCapital Stock of, or a business line or unit or a division of, any Person (anyof the foregoing, an **“Acquisition”**)if an Event of Default or Potential Event of Default exists or would resultfrom such transaction.

 

**6.4****          Restrictions onSubsidiary Distributions.**

 

Except as providedherein, the Borrower shall not, and shall not permit any of its Subsidiariesto, create or otherwise cause or suffer to exist or become effective anyconsensual encumbrance or restriction of any kind on the ability of anySubsidiary of the Borrower to (a) pay dividends or make any otherdistributions on any of such Subsidiary’s Capital Stock owned by the Borroweror any other Subsidiary of the Borrower, (b) repay or prepay anyIndebtedness owed by such Subsidiary to the Borrower or any other Subsidiary ofthe Borrower, (c) make loans or advances to the Borrower or any otherSubsidiary of the Borrower, or (d) transfer any of its property or assetsto the Borrower or any other Subsidiary of the Borrower, other than restrictions(i) existing under this Agreement or the Bridge Facility, (ii) inagreements evidencing Indebtedness pursuant to Capital Leases permitted by Section 6.2that impose restrictions on the property so acquired (except that suchagreements shall not in any manner limit the ability of the Borrower or anySubsidiary of the Borrower to pay dividends or make any other distribution) or (iii) byreason of customary provisions restricting assignments, subletting or othertransfers contained in leases, licenses, Joint Venture agreements and similaragreements entered into in the ordinary course of business.

 

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

 

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Event of Default or a Potential Event of Default exists or would resulttherefrom; provided, however, that Subsidiaries shall in no event beprohibited from paying, making or setting aside any sum for any RestrictedPayment to the Borrower or any other Subsidiary.

 

**6.6****          Restriction onFundamental Changes; Sales of Assets.**

 

Except pursuant to theDistribution consistent with the terms of this Agreement, the Borrower shallnot, and shall not permit any of its Subsidiaries to, enter into anytransaction of merger or consolidation, or liquidate, wind-up or dissolveitself (or suffer any liquidation or dissolution), or convey, sell, lease orsub-lease (as lessor or sub-lessor), exchange, transfer or otherwise disposeof, in one transaction or a series of transactions, all or any portion of itsbusiness, assets or property of any kind whatsoever, whether real, personal ormixed and whether tangible or intangible, whether now owned or hereafteracquired except:

 

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

 

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

 

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

 

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

 

(v)           any disposition of accountsreceivable (including chattel paper, instruments and general intangibles) ornotes receivable, the rights related to any of the foregoing and propertyrelated to any of the foregoing in connection with Qualified ReceivablesTransactions;

 

(vi)          Acquisitions permitted by Section 6.3;and

 

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

 

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

 

**6.7****         **[Reserved.].

 

**6.8****          Conduct of Business.**

 

From and after theEffective Date, the Borrower shall not, and shall not permit any of itsSubsidiaries to, engage in any material business or conduct any activitiesother than engaging in the businesses now conducted by the Borrower and itsSubsidiaries and businesses reasonably related thereto.

 

**6.9****          Accounting Changes;Fiscal Year.**

 

The Borrower shall notmake or permit, nor permit any of its Subsidiaries to make or permit, anychange in the Fiscal Year of the Borrower or any of its Subsidiaries.

 

**6.10****        Other Indebtedness.**

 

The Borrower shall not,and shall not permit any of its Subsidiaries to, amend or otherwise change theterms of any Subordinated Indebtedness, or make any optional payment or anypayment pursuant thereto, if the effect of such amendment or change is toincrease the interest rate on such Subordinated Indebtedness, change (toearlier dates) any dates upon which payments of principal or interest are duethereon, change any event of default or condition to an event of default withrespect thereto (other than to eliminate any such event of default or increaseany grace period related thereto), change the redemption, prepayment ordefeasance provisions thereof, change the subordination provisions of suchSubordinated Indebtedness (or of any guaranty thereof), or if the effect ofsuch amendment or change, together with all other amendments or changes made, isto increase materially the obligations of the obligor thereunder or to conferany additional rights on the holders of such Subordinated Indebtedness (or atrustee or other representative on their behalf) which would be adverse to anyCredit Party or the Lenders.

 

**6.11****        Transactions withShareholders and Affiliates.**

 

The Borrower shall not,and shall not permit any of its Subsidiaries to, directly or indirectly, enterinto or permit to exist any transaction (including the purchase, sale, lease orexchange of any property or the rendering of any service or the making of anyintercompany loan) with any Affiliate of the Borrower or any of itsSubsidiaries, any holder of Capital Stock or other interests in the Borrower orany of its Subsidiaries, or any such Affiliate of any such holder, on fair andreasonable terms that are less favorable to the Borrower or such Subsidiary, asthe case may be, than those that might be obtained at the time in a comparablearm’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 betweenthe Borrower and its Subsidiaries or between such Subsidiaries to the extentotherwise permitted hereunder; (b) reasonable and customary fees paid tomembers of the board of directors (or similar governing body) of the Borrowerand its Subsidiaries; (c) compensation arrangements for officers and otheremployees 

 

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of the Borrowerand its Subsidiaries entered into in the ordinary course of business; (d) anytransaction entered into pursuant to or contemplated by the Separation andDistribution Agreement; (e) transactions described on Schedule 6.11;and transactions in connection with Qualified Receivables Transactionspermitted under this Agreement.

 

**6.12****       **[Reserved.].

 

**6.13****       **[Reserved.].

 

**6.14****        Financial Covenants.**

 

**A.  ****Interest Coverage Ratio.** The Borrower shall not permit the Interest Coverage Ratio as of the lastday 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 ofthe last day of any Fiscal Quarter, for the four Fiscal Quarter period thenended, to *exceed* 3.00 to 1.00.

 

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

 

**D.  CertainCalculations.**  With respect to any period during which aAcquisition or an Asset Sale has occurred (each, a **“Subject Transaction”**), for purposes of determiningcompliance with the financial covenants set forth in this Section 6.14,Consolidated Adjusted EBIT and Consolidated Adjusted EBITDA shall be calculatedwith respect to such period on a pro forma basis (including pro formaadjustments arising out of events which are directly attributable to a specifictransaction, are factually supportable and are expected to have a continuingimpact, in each case determined on a basis consistent with Article 11 ofRegulation S-X promulgated under the Securities Act and as interpreted by thestaff of the Securities and Exchange Commission, which would include costsavings resulting from head count reduction, closure of facilities and similarrestructuring charges, which pro forma adjustments shall be certified by thechief financial officer of the Borrower) using the historical audited financialstatements of any business so acquired or to be acquired or sold or to be soldand the consolidated financial statements of the Borrower and its Subsidiarieswhich shall be reformulated as if such Subject Transaction, and any Indebtednessincurred or repaid in connection therewith, had been consummated or incurred orrepaid at the beginning of such period (and assuming that such Indebtednessbears interest during any portion of the applicable measurement period prior tothe relevant acquisition at the weighted average of the interest ratesapplicable to outstanding Loans incurred during such period).

 

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**6.15****        Interest RateAgreements and Currency Agreements.**

 

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

 

**SECTION 7.**         **GUARANTY**

 

**7.1****          Guaranty of theObligations.**

 

The Guarantor herebyirrevocably and unconditionally guarantees to the Administrative Agent for theratable benefit of the Beneficiaries the due and punctual payment in full ofall 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 theoperation of the automatic stay under Section 362(a) of theBankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the **“Guaranteed Obligations”**).

 

**7.2****          Payment by theBorrower.**

 

The Guarantor herebyagrees, in furtherance of the foregoing and not in limitation of any otherright which any Beneficiary may have at law or in equity against the Guarantorby virtue hereof, that upon the failure of any Subsidiary Borrower to pay anyof the Guaranteed Obligations when and as the same shall become due, whether atstated maturity, by required prepayment, declaration, acceleration, demand orotherwise (including amounts that would become due but for the operation of theautomatic stay under Section 362(a) of the Bankruptcy Code,11 U.S.C.  § 362(a)), theGuarantor will upon demand pay, or cause to be paid, in Cash, to theAdministrative Agent for the ratable benefit of the Beneficiaries, an amountequal to the sum of the unpaid principal amount of all Guaranteed Obligationsthen due as aforesaid, accrued and unpaid interest on such GuaranteedObligations (including interest which, but for such Subsidiary Borrowerbecoming the subject of a case under the Bankruptcy Code, would have accrued onsuch Guaranteed Obligations, whether or not a claim is allowed against suchCredit Party for such interest in the related bankruptcy case) and all otherGuaranteed Obligations then owed to the Beneficiaries as aforesaid.

 

**7.3****          Liability ofGuarantor Absolute.**

 

The Guarantor agrees thatits Obligations hereunder are irrevocable, absolute, independent andunconditional and shall not be affected by any circumstance which constitutes alegal or equitable discharge of a guarantor or surety other than payment infull of the Guaranteed Obligations.  Infurtherance of the foregoing and without limiting the generality thereof, theGuarantor agrees as follows:

 

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

 

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

 

(c)             the Obligations of the Guarantor hereunder areindependent of the Obligations of the Borrower and the Subsidiary Borrowers andthe obligations of any other guarantor (including any other Guarantor), and aseparate action or actions may be brought and prosecuted against the Guarantorwhether or not any action is brought against the Borrower or any SubsidiaryBorrower or any of such other guarantors and whether or not the Borrower or anySubsidiary Borrower is joined in any such action or actions;

 

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

 

(e)             any Beneficiary, upon such terms as it deemsappropriate, without notice or demand and without affecting the validity orenforceability hereof or giving rise to any reduction, limitation, impairment,discharge or termination of the Guarantor’s liability hereunder, from time totime may (i) renew, extend, accelerate, increase the rate of interest on,or otherwise change the time, place, manner or terms of payment of theGuaranteed Obligations; (ii) settle, compromise, release or discharge, oraccept or refuse any offer of performance with respect to, or substitutionsfor, the Guaranteed Obligations or any agreement relating thereto and/orsubordinate the payment of the same to the payment of any other obligations; (iii) requestand accept other guaranties of the Guaranteed Obligations and take and holdsecurity 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 paymentof the Guaranteed Obligations, any other guaranties of the GuaranteedObligations, or any other obligation of any Person with respect to theGuaranteed Obligations; (v) enforce and apply any security now orhereafter held by or for the benefit of such Beneficiary in respect hereof orthe Guaranteed Obligations and direct the order or manner of sale thereof, orexercise any other right or remedy that such Beneficiary may have against anysuch security, in each case as such Beneficiary in its discretion may determineconsistent herewith and any applicable security agreement, includingforeclosure on any such security pursuant to one or more judicial ornonjudicial sales, whether or not every aspect of any such sale is commerciallyreasonable, and even though such action operates to impair or extinguish anyright of reimbursement or subrogation or other right or remedy of the Guarantoragainst any Subsidiary Borrower or any security for the Guaranteed Obligations;and (vi) exercise any other rights available to it under the LoanDocuments; and

 

(f)              this Guaranty and the obligations of the Guarantorhereunder shall be valid and enforceable and shall not be subject to anyreduction, limitation, impairment, discharge or termination for any reason(other than payment in full of the Guaranteed Obligations), including theoccurrence 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) anyfailure or omission to assert or enforce or agreement or election not to assertor enforce, or the stay or enjoining, by order of court, by operation of law orotherwise, 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 orotherwise) with respect to the Guaranteed Obligations or any agreement relatingthereto, or with respect to any other guaranty of or security for the paymentof the Guaranteed Obligations; (ii) any rescission, waiver, amendment ormodification of, or any consent to departure from, any of the terms orprovisions (including provisions relating to events of default) hereof, any ofthe other Loan Documents or any agreement or instrument executed pursuantthereto, 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 LoanDocument or any agreement relating to such other guaranty or security; (iii) theGuaranteed Obligations, or any agreement relating thereto, at any time beingfound to be illegal, invalid or unenforceable in any respect; (iv) theapplication of payments received from any source (other than payments receivedpursuant to the other Loan Documents or from the proceeds of any security forthe Guaranteed Obligations, except to the extent such security also serves ascollateral for Indebtedness other than the Guaranteed Obligations) to thepayment of Indebtedness other than the Guaranteed Obligations, even though anyBeneficiary might have elected to apply such payment to any part or all of theGuaranteed Obligations; (v) any Beneficiary’s consent to the change,reorganization or termination of the corporate structure or existence of theBorrower or any of its Subsidiaries and to any corresponding restructuring ofthe Guaranteed Obligations; (vi) any failure to perfect or continueperfection of a security interest in any collateral which secures any of theGuaranteed Obligations; (vii) any defenses, set-offs or counterclaimswhich any Credit Party may allege or assert against any Beneficiary in respectof the Guaranteed Obligations, including failure of consideration, breach ofwarranty, payment, statute of frauds, statute of limitations, accord andsatisfaction and usury; and (viii) any other act or thing or omission, ordelay to do any other act or thing, which may or might in any manner or to anyextent vary the risk of the Guarantor as an obligor in respect of theGuaranteed Obligations.

 

**7.4****          Waivers by Guarantor.**

 

The Guarantor herebywaives, for the benefit of Beneficiaries: (a) any right to require anyBeneficiary, as a condition of payment or performance by the Guarantor, to (i) proceedagainst the Borrower or the Subsidiary Borrowers, any other guarantor of theGuaranteed Obligations or any other Person, (ii) proceed against orexhaust any security held from the Borrower or any Subsidiary Borrower, anysuch other guarantor or any other Person, (iii) proceed against or haveresort to any balance of any Deposit Account or credit on the books of anyBeneficiary in favor of the Borrower or any Subsidiary Borrower or any otherPerson, or (iv) pursue any other remedy in the power of any Beneficiarywhatsoever; (b) any defense arising by reason of the incapacity, lack ofauthority or any disability or other defense of the Borrower or any SubsidiaryBorrower including any defense based on or arising out of the illegality, lackof validity or unenforceability of the Guaranteed Obligations or any agreementor instrument relating thereto or by reason of the cessation of the liabilityof the Borrower or any Subsidiary Borrower from any cause other than payment infull of the Guaranteed Obligations; (c) any defense based upon any statuteor rule of law which provides that the obligation of a surety must be neitherlarger in amount nor in other respects more burdensome than that of theprincipal; (d) any defense based upon any Beneficiary’s errors oromissions in the administration of the Guaranteed Obligations, 

 

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

 

**7.5****          Guarantor’s Rights ofSubrogation, Contribution, etc.**

 

Until the GuaranteedObligations shall have been indefeasibly paid in full and the RevolvingCommitments shall have terminated and all Letters of Credit shall have expiredor been cancelled, the Guarantor hereby waives any claim, right or remedy,direct or indirect, that the Guarantor now has or may hereafter have againstany Subsidiary Borrower or any of its assets in connection with this Guarantyor the performance by the Guarantor of its Obligations hereunder, in each casewhether such claim, right or remedy arises in equity, under contract, bystatute, under common law or otherwise and including without limitation (a) anyright of subrogation, reimbursement or indemnification that the Guarantor nowhas or may hereafter have against any Subsidiary Borrower with respect to theGuaranteed Obligations, (b) any right to enforce, or to participate in,any claim, right or remedy that any Beneficiary now has or may hereafter haveagainst any Subsidiary Borrower, and (c) any benefit of, and any right toparticipate in, any collateral or security now or hereafter held by anyBeneficiary.  In addition, until theGuaranteed Obligations shall have been indefeasibly paid in full and theRevolving Commitments shall have terminated and all Letters of Credit shallhave expired or been cancelled, the Guarantor shall withhold exercise of anyright of contribution the Guarantor may have against any other guarantor(including any other Guarantor) of the Guaranteed Obligations.  The Guarantor further agrees that, to theextent the waiver or agreement to withhold the exercise of its rights ofsubrogation, reimbursement, indemnification and contribution as set forthherein is found by a court of competent jurisdiction to be void or voidable forany reason, any rights of subrogation, reimbursement or indemnification theGuarantor may have against any Subsidiary Borrower or against any collateral orsecurity, and any rights of contribution the Guarantor may have against anysuch other guarantor, shall be junior and subordinate to any rights anyBeneficiary may have against any Subsidiary Borrower, to all right, title andinterest any Beneficiary may have in any such collateral or security, and toany right any Beneficiary may have against such other guarantor.  If any amount shall be paid to the Guarantoron account of any such subrogation, reimbursement, indemnification orcontribution rights at any time when all Guaranteed Obligations shall not havebeen finally and indefeasibly paid in full, such amount shall be held in trustfor the Administrative Agent on behalf of the Beneficiaries and shall forthwithbe paid over to the Administrative Agent for the benefit of the Beneficiariesto be credited and applied against the Guaranteed Obligations, whether maturedor unmatured, in accordance with the terms hereof.

 

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**7.6****          Subordination of OtherObligations.**

 

Any Indebtedness of anySubsidiary Borrower now or hereafter held by the Guarantor is herebysubordinated in right of payment to the Guaranteed Obligations, and any suchIndebtedness collected or received by the Guarantor after an Event of Defaulthas occurred and is continuing shall be held in trust for the AdministrativeAgent on behalf of the Beneficiaries and shall forthwith be paid over to theAdministrative Agent for the benefit of the Beneficiaries to be credited andapplied against the Guaranteed Obligations but without affecting, impairing orlimiting in any manner the liability of the Guarantor under any other provisionhereof.

 

**7.7****          Continuing Guaranty.**

 

This Guaranty is acontinuing guaranty and shall remain in effect until all of the GuaranteedObligations shall have been paid in full and the Revolving Commitments shallhave terminated and all Letters of Credit shall have expired or beencancelled.  The Guarantor herebyirrevocably waives any right to revoke this Guaranty as to future transactionsgiving rise to any Guaranteed Obligations.

 

**7.8****          Authority of Credit Parties.**

 

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

 

**7.9****          Financial Condition ofCredit Parties.**

 

Any Credit Extension maybe made to any Credit Party or continued from time to time, without notice toor authorization from the Guarantor regardless of the financial or othercondition of any Credit Party at the time of any such grant or continuation isentered into, as the case may be.  NoBeneficiary shall have any obligation to disclose or discuss with the Guarantorits assessment, or the Guarantor’s assessment, of the financial condition ofany Credit Party.  The Guarantor hasadequate means to obtain information from the other Credit Parties on acontinuing basis concerning the financial condition of the other Credit Partiesand their ability to perform their Obligations under the Loan Documents, andthe Guarantor assumes the responsibility for being and keeping informed of thefinancial condition of the other Credit Parties and of all circumstancesbearing upon the risk of nonpayment of the Guaranteed Obligations.  The Guarantor hereby waives and relinquishesany duty on the part of any Beneficiary to disclose any matter, fact or thingrelating to the business, operations or conditions of any other Credit Partiesnow known or hereafter known by any Beneficiary.

 

**7.10****        Bankruptcy, etc.**

 

(a)             So long as any Guaranteed Obligations remainoutstanding, the Guarantor shall not, without the prior written consent of theAdministrative Agent acting pursuant to the instructions of the RequisiteLenders, commence or join with any other Person in commencing any bankruptcy,reorganization or insolvency case or proceeding of or against any other CreditParty.  The Obligations of the Guarantorhereunder shall not be reduced, limited, impaired, discharged, deferred, suspendedor terminated by any case or proceeding, voluntary or involuntary, involvingthe bankruptcy, insolvency, receivership, reorganization, liquidation or

 

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

 

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

 

(c)             In the event that all or any portion of the GuaranteedObligations are paid by any Credit Party, the Obligations of the Guarantorhereunder 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) arerescinded or recovered directly or indirectly from any Beneficiary as apreference, fraudulent transfer or otherwise, and any such payments which are sorescinded or recovered shall constitute Guaranteed Obligations for all purposeshereunder.

 

**SECTION 8.**         **EVENTS OFDEFAULT**

 

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

 

**8.1****          Failure to Make Payments When Due.**

 

Failure by any CreditParty to pay (i) any installment of principal of any Revolving Loan whendue, whether at stated maturity, by acceleration, by notice of voluntaryprepayment, by mandatory prepayment, by demand pursuant to Section 7 orotherwise; (ii) when due any amount payable to the Issuing Bank inreimbursement of any drawing under a Letter of Credit; or (iii) anyinterest on any Revolving Loan or any fee or any other amount due under thisAgreement within five (5) days after the date due; or

 

**8.2****          Default in Other Agreements.**

 

Failure of any Credit Party or any oftheir respective Subsidiaries to pay when due any principal of or interest onor 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 graceperiod provided therefor, if any; or (ii) breach or default by any CreditParty or any of their respective Subsidiaries with respect to any other materialterm of (a) one or more items of such Indebtedness or (b) any loanagreement, mortgage, indenture or other agreement relating to such item(s) ofIndebtedness, in each case beyond the end of any grace period providedtherefor, if any, if the effect of such breach or

 

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default is to cause, or to permit the holder orholders 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 (orredeemable) prior to its stated maturity or the stated maturity of anyunderlying obligation, as the case may be; or

 

**8.3****          Breach of Certain Covenants.**

 

Failure of any CreditParty to perform or comply with any term or condition contained in Sections5.1(v)(a), 5.3 (solely with respect to (1) the existence of any CreditParty and (2) the failure of the Borrower to preserve or keep in fullforce and effect its rights, privileges, licenses and franchises if suchfailure would reasonably be expected to have a Material Adverse Effect), 5.9 orSection 6 of this Agreement; or

 

**8.4****          Breach of Representation orWarranty.**

 

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

 

**8.5****          Other Defaults Under LoanDocuments.**

 

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

 

**8.6****          Involuntary Bankruptcy;Appointment of Receiver, etc.**

 

(i) A court ofcompetent jurisdiction shall enter a decree or order for relief in respect ofany the Borrower or any of its Significant Subsidiaries in an involuntary caseunder the Bankruptcy Code or under any other applicable bankruptcy, insolvencyor 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 orstate law; or (ii) an involuntary case shall be commenced against theBorrower or any of its Significant Subsidiaries under the Bankruptcy Code orunder any other applicable bankruptcy, insolvency or similar law now orhereafter in effect; or a decree or order of a court having jurisdiction in thepremises for the appointment of a receiver, liquidator, sequestrator, trustee,examiner, custodian or other officer having similar powers over the Borrower orany of its Significant Subsidiaries, or over all or a substantial part of theirrespective property, shall have been entered; or there shall have occurred theinvoluntary appointment of an interim receiver, trustee, examiner or othercustodian of the Borrower or any of its Significant Subsidiaries****for all or a substantial part of theirrespective property; or a warrant of attachment, execution or similar processshall have been issued against any substantial part of the property of theBorrower or any of its Significant Subsidiaries, and any such event describedin 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 ofits Significant Subsidiaries shall have an order for relief entered withrespect to it or commence a voluntary case under the Bankruptcy Code or underany other applicable bankruptcy, insolvency or similar law now or hereafter ineffect, or shall consent to the entry of an order for relief in an involuntarycase, or to the conversion of an involuntary case to a voluntary case, underany such law, or shall consent to the appointment of or taking possession by areceiver, trustee or other custodian for all or a substantial part of itsproperty; or the Borrower or any of its Subsidiaries shall make any assignmentfor the benefit of creditors; or the Borrower or  any of its Significant Subsidiaries shall beunable, or shall fail generally, or shall admit in writing their respectiveinability, 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 SignificantSubsidiaries (or any committee thereof) shall adopt any resolution or otherwiseauthorize any action to approve any of the actions referred to in this Section 8.7or in Section 8.6 above; or

 

**8.8****          Judgments and Attachments.**

 

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

 

**8.9****          Dissolution.**

 

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

 

**8.10****        Employee Benefit Plans.**

 

There shall occur one ormore ERISA Events which individually or in the aggregate results in or mightreasonably be expected to result in liability of the Borrower or any of itsSubsidiaries****or any of theirrespective ERISA Affiliates in excess of $10,000,000 during the term of thisAgreement; or there shall exist any fact or circumstance that reasonably couldbe 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 shalloccur; or

 

**8.12****        Repudiation of Obligations.**

 

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

 

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

 

**THEN**,(1) upon the occurrence of any Event of Default described in Section 8.6or 8.7, automatically, and (2) upon the occurrence of any other Event ofDefault, at the request of (or with the consent of) Requisite Lenders, uponnotice to the Borrower by the Administrative Agent, (A) the Revolving Commitments,if any, of each Lender having such Revolving Commitments and the obligation ofthe Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) eachof the following shall immediately become due and payable, in each case withoutpresentment, demand, protest or other requirements of any kind, all of whichare hereby expressly waived by each Credit Party: (I) the unpaid principalamount of and accrued interest on the Revolving Loans, (II) an amount equal tothe maximum amount that may at any time be drawn under all Letters of Creditthen outstanding (regardless of whether any beneficiary under any such Letterof Credit shall have presented, or shall be entitled at such time to present,the drafts or other documents or certificates required to draw under suchLetters of Credit), and (III) all other Obligations; provided, theforegoing 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 theBorrower hereby agrees upon receipt of such notice, or upon the occurrence ofany Event of Default specified in Sections 8.6 and 8.7 to pay) to theAdministrative Agent such additional amounts of cash, to be held as securityfor the Borrower’s reimbursement Obligations in respect of Letters of Creditthen outstanding, equal to the Letter of Credit Usage at such time.

 

**SECTION 9.**         **MISCELLANEOUS**

 

**9.1****          Assignments andParticipations in Loans and Letters of Credit.**

 

**A.****           ****Right to Assign.** Each Lender shall have the right at any time to sell, assign or transferall or a portion of its rights and obligations under this Agreement, includingall or a portion of its Revolving Commitments or Revolving Loans owing to it orother Obligation (provided, however, that each such assignmentshall be of a uniform, and not varying, percentage of all rights andobligations under and in respect of any Revolving Loan and any relatedRevolving Commitment):  (i) to anyPerson 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 theBorrower and the Administrative Agent; and (ii) to any Person meeting thecriteria of clause (B) of the definition of the term of “Eligible Assignee”and consented to by each of the Borrower and the Administrative Agent (suchconsent not to be (x) unreasonably withheld or delayed and, (y) in the case ofthe Borrower, required at any time an Event of Default shall have occurred andthen be continuing); provided, further each such assignmentpursuant to this Section 9.1A shall be in an aggregate amount of not lessthan $5,000,000, which such amount shall be reduced to $1,000,000 at any timean Event of Default shall have occurred and be continuing (or such lesseramount as may be agreed to by the Borrower and the Administrative Agent or asshall constitute the aggregate amount of the Revolving Commitments andRevolving Loans of the assigning Lender).

 

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

 

**C.****           ****Acceptance and Notice ofAssignment.**  Upon its receipt of a duly executed andcompleted Assignment Agreement, together with the processing and recordationfee referred to in Section 9.1B (and any forms, certificates or otherevidence required by this Agreement in connection therewith), theAdministrative Agent shall record the information contained in such AssignmentAgreement in the Register, shall give prompt notice thereof to the Borrower andshall maintain a copy of such Assignment Agreement.

 

**D.****           ****Representations and Warranties ofAssignee.**  Each Lender, upon execution and deliveryhereof or upon executing and delivering an Assignment Agreement, as the casemay be, represents and warrants as of the Effective Date or as of theapplicable Effective Date (as defined in the applicable Assignment Agreement)that (i) it is an Eligible Assignee; (ii) it has experience andexpertise in the making of or investing in commitments or loans such as theapplicable Revolving Commitments or Revolving Loans, as the case may be; and (iii) itwill make or invest in, as the case may be, its Revolving Commitments orRevolving Loans for its own account in the ordinary course of its business andwithout a view to distribution of such Revolving Commitments or Revolving Loanswithin the meaning of the Securities Act or the Exchange Act or other federal securitieslaws (it being understood that, subject to the provisions of this Section 9.1,the disposition of such Revolving Commitments or Revolving Loans or anyinterests 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 “EffectiveDate” specified in the applicable Assignment Agreement: (i) the assigneethereunder shall have the rights and obligations of a “Lender” hereunder to theextent such rights and obligations hereunder have been assigned to it pursuantto such Assignment Agreement and shall thereafter be a party hereto and a “Lender”for all purposes hereof; (ii) the assigning Lender thereunder shall, tothe extent that rights and obligations hereunder have been assigned therebypursuant to such Assignment Agreement, relinquish its rights (other than anyrights which survive the termination hereof under Section 9.9) and bereleased from its obligations hereunder (and, in the case of an AssignmentAgreement covering all or the remaining portion of an assigning Lender’s rightsand obligations hereunder, such Lender shall cease to be a party hereto; provided,anything contained in any of the Loan Documents to the contrarynotwithstanding, (y) the Issuing Bank shall continue to have all rights andobligations thereof with respect to such Letters of Credit until thecancellation or expiration of such Letters of Credit and the reimbursement ofany amounts drawn thereunder and (z) such assigning Lender shall continue to beentitled to the benefit of all indemnities hereunder as specified herein withrespect to matters arising out of the prior involvement of such assigningLender as a Lender hereunder); (iii) the Revolving Commitments shall bemodified to reflect the Revolving Commitment of such assignee and any RevolvingCommitment of such assigning Lender, if any; and (iv) if any suchassignment occurs after the issuance of any Revolving Note hereunder, theassigning Lender shall, upon the effectiveness of such assignment or aspromptly thereafter as practicable,

 

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surrender its applicable Revolving Notes toAdministrative Agent for cancellation, and thereupon the Credit Parties shallissue and deliver new Revolving Notes, if so requested by the assignee and/orassigning Lender, to such assignee and/or to such assigning Lender, withappropriate insertions, to reflect the new Revolving Commitments and/oroutstanding Revolving Loans of the assignee and/or the assigning Lender.

 

**F.****            ****Certain Other PermittedAssignments.**  In addition to any other assignment permittedpursuant to this Section 9.1, any Lender may assign and/or pledge all orany portion of its Loans, the other obligations owed by or to such Lender, andits Letters of Credit, if any, to secure obligations of such Lender includingto any Federal Reserve Bank as collateral security pursuant to Regulation A ofthe Board of Governors of the Federal Reserve System and any operating circularissued by such Federal Reserve Bank; provided that no such assignment orpledge shall release any Lender from any of its obligations hereunder orsubstitute any such pledgee or assignee for such Lender as a party hereto.

 

**G.****           ****Participations.**  Each Lender shall have the right at any timeto sell one or more participations to any Person (other than the CreditParties, any of their Subsidiaries or any of their Affiliates) in all or anypart of its Revolving Commitments, Revolving Loans orother Obligations.  The holder of anysuch participation, other than an Affiliate of the Lender granting suchparticipation, shall not be entitled to require such Lender to take or omit totake any action hereunder except with respect to any amendment, modification orwaiver that would (i) extend the final scheduled maturity of any RevolvingLoan or Revolving Note in which suchparticipant is participating, or reduce the rate or extend the time of paymentof interest or fees thereon (except in connection with a waiver ofapplicability of any post default increase in interest rates) or reduce theprincipal amount thereof, or increase the amount of the participant’sparticipation over the amount thereof then in effect (it being understood thata waiver of any Event of Default or of a mandatory reduction in the RevolvingCommitment shall not constitute a change in the terms of such participation,and that an increase in any Revolving Commitment or Revolving Loan shall bepermitted without the consent of any participant if the participant’s participationis not increased as a result thereof) or (ii) consent to the assignment ortransfer by any Credit Party of any of its rights and obligations under thisAgreement.  The Credit Parties agree thateach participant shall be entitled to the benefits of Sections 2.9C and 2.8 tothe same extent as if it were a Lender and had acquired its interest byassignment pursuant to Section 9.1A; provided, (i) aparticipant shall not be entitled to receive any greater payment under Section 2.8than the applicable Lender would have been entitled to receive with respect tothe participation sold to such participant, unless the sale of theparticipation to such participant is made with the applicable Credit Party’sprior written consent and (ii) a participant that would be a Non-US Lenderif it were a Lender shall not be entitled to the benefits of Section 2.8Bunless the applicable Credit Party is notified of the participation sold tosuch participant and such participant agrees, for the benefit of such CreditParty, to comply with Section 2.8B as though it were a Lender.  To the extent permitted by law, eachparticipant also shall be entitled to the benefits of Section 9.5 asthough it were a Lender, provided such participant agrees to be subject to Section 9.19as though it were a Lender.

 

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**9.2****          Expenses.**

 

Whether or not thetransactions contemplated hereby shall be consummated, the Credit Parties agreeto pay promptly (i) all the actual and reasonable costs and out-of-pocketexpenses of preparation of the Loan Documents; (ii) all the costs offurnishing all opinions by counsel for the Credit Parties; (iii) thereasonable fees, out-of-pocket expenses and disbursements of a single U.S.counsel, a special Canada counsel and a special Ireland counsel to the LeadArrangers and the Agents in connection with the negotiation, preparation andexecution of the Loan Documents and any other documents or matters requested bythe Credit Parties; (iv) all the actual and reasonable costs andout-of-pocket reasonable fees, expenses and disbursements of any auditors,accountants, consultants or appraisers; (v) all other actual andreasonable costs and out-of-pocket expenses incurred by each Lead Arranger, theAdministrative Agent and each Syndication Agent in connection with thesyndication of the Loans and the negotiation, preparation and execution of theLoan Documents and the transactions contemplated thereby; (vi) all actualand reasonable costs and out-of-pocket expenses incurred by the AdministrativeAgent in connection with any consents, amendments, waivers or othermodifications of the Loan Documents (including the reasonable fees,out-of-pocket expenses and disbursements of counsel to the Administrative Agentin connection therewith) and, (vii) after the occurrence of an Event ofDefault, all costs and expenses, including reasonable attorneys’ fees(including, without duplication, allocated costs of internal counsel) and costsof settlement, incurred by any Agent or Lender in enforcing any Obligations ofor in collecting any payments due from the Credit Parties hereunder or underthe other Loan Documents by reason of such Event of Default (including inconnection with the sale of, collection from, or other realization upon anycollateral) or in connection with any refinancing or restructuring of thecredit 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 ofexpenses pursuant to Section 9.2, whether or not the transactionscontemplated hereby shall be consummated, the Credit Parties agree to defend(subject to Indemnitees’ selection of counsel), indemnify, pay and holdharmless each of the Lead Arrangers and Agents and each Lender, and therespective partners, officers, directors, employees, agents, attorneys, andaffiliates of each of the Lead Arrangers and each of the Agents and each Lender(collectively called the **“Indemnitees”**), from and against any and all IndemnifiedLiabilities (as hereinafter defined); provided that the Credit Partiesshall not have any obligation to any Indemnitee hereunder with respect to anyIndemnified Liabilities to the extent such Indemnified Liabilities arise fromthe gross negligence or willful misconduct of that Indemnitee or any of itsAffiliates as determined by a final judgment of a court of competentjurisdiction.  As used herein, **“Indemnified Liabilities”** means, collectively, any and allliabilities, 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 (includingthe reasonable fees and disbursements of counsel for Indemnitees in connectionwith any investigative, administrative or judicial proceeding commenced orthreatened by any Person, whether or not any such Indemnitee shall bedesignated as a party or a potential party thereto, and any fees or expensesincurred by Indemnitees in enforcing this indemnity), whether direct, indirector consequential and whether based on any federal, state or foreign laws,statutes, rules or regulations (including securities and commercial

 

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

 

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

 

**C.****           **To the extent permitted byapplicable law, the Credit Parties and each of their Subsidiaries shall notassert, and each hereby waives, any claim against the Lenders, the Agents, theLead Arrangers and their respective Affiliates, officers, directors, employees,attorneys or agents, on any theory of liability, for special, indirect,consequential or punitive damages  (asopposed to direct or actual damages) (whether or not the claim therefor isbased 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 anyway related to, this Agreement or any other Loan Document, or any agreement orinstrument contemplated hereby or thereby or referred to herein or therein, thetransactions contemplated hereby or thereby, any Loan or the use of theproceeds thereof or any act or omission or event occurring in connectiontherewith, 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, whetheror not accrued and whether or not known or suspected to exist in its favor.

 

**9.4****          Exception for SubsidiaryBorrowers.**

 

Notwithstanding theforegoing, nothing in Sections 9.2 and 9.3 shall require a payment by aSubsidiary Borrower if such payment would violate any Applicable Law or if anyApplicable Law would require minority shareholder approval, a valuation or adiscretionary order*,*provided that the Guarantor shallbe liable for any such payment referred to in this Section 9.4.

 

**9.5****          Set-Off.**

 

In addition to any rightsnow or hereafter granted under applicable law and not by way of limitation ofany such rights, upon the occurrence and during the continuance of any Event ofDefault, each of the Agents and each Lender (and each of their respectiveAffiliates) is hereby authorized by the Credit Parties at any time or from timeto 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 beunreasonably withheld or delayed), without notice to the Credit Parties or toany other Person, any such notice being hereby expressly waived, to set-off andto appropriate and to apply any and all deposits (general or special, includingIndebtedness evidenced by certificates of deposit, whether matured orunmatured, but not including trust accounts) and any other Indebtedness at anytime held or owing by such Agent or such Lender (or such Affiliate),

 

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

 

**9.6****          Amendments and Waivers.**

 

No amendment, modification,termination or waiver of any provision of this Agreement or of any other LoanDocument, or consent to any departure by the Credit Parties therefrom, shall inany event be effective without the written concurrence of the RequisiteLenders; provided, that no amendment, modification, termination, waiveror consent shall, without the consent of each Lender: (i) extend thescheduled final maturity of any Revolving Loan or Revolving Note; (ii) waive,reduce or postpone any scheduled repayment (but not prepayment); (iii) reducethe rate of interest on any Revolving Loan or any fee or other amount payablehereunder; (iv) extend the time for payment of any such interest, fees orother amounts; (v) extend the stated expiration date of any Letter ofCredit beyond the Maturity Date; (vi) reduce the principal amount of anyRevolving Loan or Revolving Note; (vii) amend, modify, terminate or waiveany provision of this Section 9.6; (viii) amend, modify or replacethe definition of “Requisite Lenders” or “Pro Rata Share”, or any provision ofthis Agreement which would alter the *prorata* sharing of payments required hereunder; (ix) consent tothe assignment or transfer by any Credit Party of any of its rights andobligations under this Agreement; or (x) release the Guarantor from itsObligations under the Guaranty; provided, further, that no suchamendment, modification, termination or waiver of any provision of the LoanDocuments, or consent to any departure by any Credit Party therefrom, shall: (1) increasethe Revolving Commitments of any Lender over the amount thereof then in effectwithout the consent of such Lender; or (2) amend, modify, terminate orwaive any provision of this Agreement as the same applies to the rights orobligations of any Agent, in each case without the consent of such Agent.  The Administrative Agent may, but shall haveno 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 onlyin the specific instance and for the specific purpose for which it wasgiven.  No notice to or demand on anyCredit Party in any case shall entitle such Credit Party to any other orfurther notice or demand in similar or other circumstances.

 

**9.7****          Independence of Covenants.**

 

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

 

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**9.8****          Notices.**

 

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

 

**B.****           ****Intralinks.**

 

(i)      The Credit Parties hereby agree that they will provideto the Administrative Agent all information, documents and other materials thatthey are obligated to furnish to the Administrative Agent pursuant to the LoanDocuments, including all notices, requests, financial statements, financial andother reports, certificates and other information materials, but excluding anysuch communication that (i) relates to a request for a new, or aconversion of an existing, borrowing or other Credit Extension (including anyelection of an interest rate or interest period relating thereto), (ii) relatesto the payment of any principal or other amount due under this Agreement priorto the scheduled date therefor, (iii) provides notice of any PotentialDefault or Event of Default or (iv) is required to be delivered to satisfyany condition precedent to the effectiveness of this Agreement and/or anyborrowing or other Credit Extension hereunder (all such non-excludedcommunications being referred to herein collectively as **“Communications”**), by transmitting theCommunications in an electronic/soft medium in a format acceptable to theAdministrative Agent to oploanswebadmin@citigroup.com.  In addition, the Credit Parties  agree to continue to provide theCommunications to the Administrative Agent in the manner specified in the LoanDocuments  but only to the extentrequested by the Administrative Agent.

 

(ii)     The Credit Parties further agree that theAdministrative Agent may make the Communications available to the Lenders byposting the Communications on Intralinks or a substantially similar electronictransmission system (the **“Platform”**).

 

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

 

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**LIABILITY TO THECREDIT PARTIES, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANYKIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIALDAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISINGOUT OF THE CREDIT PARTIES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OFCOMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANYAGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENTJURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSSNEGLIGENCE OR WILLFUL MISCONDUCT.**

 

(iv)    The Administrative Agent agrees that the receipt ofthe Communications by the Administrative Agent at its e-mail address set forthabove shall constitute effective delivery of the Communications to theAdministrative Agent for purposes of the Loan Documents.  EachLender agrees that notice to it (as provided in the next sentence) specifyingthat the Communications have been posted to the Platform shall constituteeffective delivery of the Communications to such Lender for purposes of theLoan Documents.  Each Lender agrees tonotify the Administrative Agent in writing (including by electroniccommunication) from time to time of such Lender’s e-mail address to which theforegoing notice may be sent by electronic transmission and (ii) that theforegoing notice may be sent to such e-mail address.

 

**C.****           ****Notices to Subsidiary Borrowers.  **Each Subsidiary Borrower hereby designates theBorrower as its representative and agent on its behalf for the purposes ofgiving and receiving all notices (other than Notices of Borrowing) and anyother documentation required to be delivered to it pursuant to this Agreementand any other Loan Document by the Administrative Agent or any Lender.  The Borrower hereby accepts suchappointment.  The Agents and the Lendersmay regard any notice (other than Notices of Borrowing) or other communicationpursuant to any Loan Document from the Borrower as a notice or communicationfrom all borrowers, and may give any notice or communication required orpermitted to be given to any Subsidiary Borrower or Subsidiary Borrowershereunder to the Borrower on behalf of such Subsidiary Borrower or SubsidiaryBorrowers.  Each Subsidiary Borroweragrees that each notice, election, representation and warranty, covenant,agreement and undertaking made on its behalf by the Borrower shall be deemedfor all purposes to have been made by such Subsidiary Borrower and shall bebinding upon and enforceable against such Subsidiary Borrower to the sameextent as if the same had been made directly by such Subsidiary Borrower.

 

**9.9****          Survival of Representations,Warranties and Agreements.**

 

**A.****           **All representations, warranties andagreements made herein shall survive the execution and delivery of thisAgreement and the making of the Loans hereunder.

 

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

 

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**9.10****        Failure or Indulgence NotWaiver; Remedies Cumulative.**

 

No failure or delay onthe part of any Lead Arranger, any Agent or any Lender in the exercise of anypower, right or privilege hereunder or under any other Loan Document shallimpair such power, right or privilege or be construed to be a waiver of anydefault or acquiescence therein, nor shall any single or partial exercise ofany such power, right or privilege preclude other or further exercise thereofor of any other power, right or privilege. The rights, powers and remedies given to each Lead Arranger, each Agentand each Lender hereby are cumulative and shall be in addition to andindependent of all rights, powers and remedies existing by virtue of anystatute or rule of law or in any other Loan Document.  Any forbearance or failure to exercise, andany delay in exercising, any right, power or remedy hereunder shall not impairany such right, power or remedy or be construed to be a waiver thereof, norshall it preclude the further exercise of any such right, power or remedy.

 

**9.11****        Marshalling; Payments Set Aside.**

 

No Agent or Lender shallbe under any obligation to marshal any assets in favor of any Credit Party orany other Person or against or in payment of any or all of theObligations.  To the extent that anyCredit Party makes a payment or payments to the Administrative Agent or theLenders (or to the Administrative Agent, on behalf of the Lenders) or theAdministrative Agent or the Lenders enforce any security interests or exercisestheir rights of set-off, and such payment or payments or the proceeds of suchenforcement or set-off or any part thereof are subsequently invalidated,declared to be fraudulent or preferential, set aside and/or required to berepaid to a trustee, receiver or any other party under any bankruptcy law, anyother state or federal law, common law or any equitable cause, then, to theextent of such recovery, the obligation or part thereof originally intended tobe 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 orpayments had not been made or such enforcement or set-off had not occurred.

 

**9.12****        Severability.**

 

In case any provision inor obligation under any Loan Document shall be invalid, illegal orunenforceable in any jurisdiction, the validity, legality and enforceability ofthe remaining provisions or obligations of such Loan Document, the other LoanDocuments or of such provision or obligation in any other jurisdiction, shallnot in any way be affected or impaired thereby.

 

**9.13****        Headings.**

 

Section and subsection headingsin this Agreement are included herein for convenience of reference only andshall not constitute a part of this Agreement for any other purpose or be givenany substantive effect.

 

**9.14****        Applicable Law.**

 

**THISAGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OFTHE STATE OF NEW YORK.**

 

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**9.15****        Successors and Assigns.**

 

This Agreement shall bebinding upon the parties hereto and their respective successors and assigns andshall inure to the benefit of the parties hereto and the successors and assignsof the Lenders (it being understood that each Lender’s rights of assignment aresubject to Section 9.1).  The CreditParties may not assign or delegate its rights or obligations hereunder or anyinterest therein without the prior written consent of each Lender.  Nothing in this Agreement, expressed orimplied, shall be construed to confer upon any Person (other than the partieshereto, their respective successors and assigns permitted hereby and, to theextent expressly contemplated hereby, the Indemnitees, and Affiliates of eachof the Agents and the Lenders) any legal or equitable right, remedy or claimunder or by reason of this Agreement.

 

**9.16****        Consent to Jurisdiction andService of Process.**

 

**ALLJUDICIAL PROCEEDINGS BROUGHT AGAINST THE CREDIT PARTIES ARISING OUT OF ORRELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONSTHEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENTJURISDICTION 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)****            ACCEPTSGENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCHCOURTS;**

 

**(II)****           WAIVESANY DEFENSE OF *FORUM NON CONVENIENS*;**

 

**(III)****         AGREESTHAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BEMADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH CREDITPARTY AT ITS ADDRESS SET FORTH ON THE SIGNATURE PAGES HERETO;**

 

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

 

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

 

**(VI)****         AGREESTHAT THE PROVISIONS OF THIS SECTION 9.16 RELATING TO JURISDICTION ANDVENUE SHALL BE BINDING AND**

 

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

 

**9.17****        Waiver of Jury Trial.**

 

**EACHOF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTSTO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OFTHIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEMRELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWERRELATIONSHIP THAT IS BEING ESTABLISHED.**  The scope of this waiver is intended to beall-encompassing of any and all disputes that may be filed in any court andthat relate to the subject matter of this transaction, including contractclaims, tort claims, breach of duty claims and all other common law andstatutory claims.  Each party heretoacknowledges that this waiver is a material inducement to enter into a businessrelationship, that each has already relied on this waiver in entering into thisAgreement, and that each will continue to rely on this waiver in their relatedfuture dealings.  Each party heretofurther warrants and represents that it has reviewed this waiver with its legalcounsel and that it knowingly and voluntarily waives its jury trial rights followingconsultation with legal counsel.  **THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOTBE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVERSPECIFICALLY REFERRING TO THIS SECTION 9.17 AND EXECUTED BY EACH OF THEPARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHERLOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANSMADE HEREUNDER.**  In the eventof litigation, this Agreement may be filed as a written consent to a trial bythe court.

 

**9.18****        Confidentiality.**

 

Each Agent and Lendershall hold all confidential, proprietary or non-public information regardingthe Credit Parties and their respective Subsidiaries and their respectivebusinesses which has been identified as confidential by any such Credit Partyand obtained pursuant to the requirements of this Agreement in accordance withsuch Agent’s or Lender’s customary procedures for handling confidentialinformation of this nature and in accordance with safe and sound bankingpractices, it being understood and agreed by the Credit Parties that in anyevent each Lender may make disclosures (i) to Affiliates of such Agent orLender and the directors, officers, employees, agents, advisors and other representativesof such Agent or Lender and their Affiliates (and to other persons authorizedby an Agent or Lender to organize, present or disseminate such information inconnection with disclosures otherwise made in accordance with this Section 9.18);(ii) reasonably required by any bona fide or potential assignee,transferee or participant in connection with the contemplated assignment,transfer or participation by any Lender of its Revolving Loans or any interesttherein; provided that, prior to any disclosure, such rating agencyshall undertake in writing to preserve the confidentiality of any confidentialinformation relating to the Credit Parties or their Subsidiaries received by itfrom any of the Agents or any Lender; (iv) required or requested by any GovernmentalAuthority or

 

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representativethereof; provided that unless specifically prohibited by applicable law,court order or similar regulatory process, each Agent and Lender shall makereasonable efforts to notify the Credit Parties of any request by anyGovernmental Authority or representative thereof (other than any such requestin connection with any examination of the financial condition or other routineexamination of such Agent or Lender by such Governmental Authority) fordisclosure of any such non-public information prior to disclosure of suchinformation; (v) to any other party hereto; (vi) in connection withthe exercise of any remedies hereunder or under any other Loan Document or anyaction or proceeding relating to this Agreement or any other Loan Document orthe enforcement of rights hereunder or thereunder; (vii) to any actual orprospective counterparty (or its advisors) to any swap or derivativetransaction relating to the Credit Parties and their Obligations; (viii) withthe consent of the applicable Credit Party or (ix) to the extent suchinformation (x) becomes publicly available other than as a result of a breachof this Section 9.18 or (y) becomes available to any Agent, any Lender ortheir respective Affiliates on a nonconfidential basis from a source other thanthe Credit Parties so long as such Agent, such Lender or such Affiliate doesnot have knowledge that such source has an obligation to any Credit Party tokeep such information confidential; provided, that in no event shall anyAgent or Lender be obligated or required to return any materials furnished byany Credit Party or any of its Subsidiaries. Notwithstanding anything to the contrary set forth herein, each party(and each of their respective employees, representatives or other agents) maydisclose to any and all persons, without limitations of any kind, the taxtreatment and tax structure of the transactions contemplated by this Agreementand all materials of any kind (including opinions and other tax analyses) thatare provided to any such party relating to such tax treatment and taxstructure. However, any information relating to the tax treatment or taxstructure shall remain subject to the confidentiality provisions hereof (andthe foregoing sentence shall not apply) to the extent reasonably necessary toenable the parties hereto, their respective Affiliates, and their and theirrespective Affiliates’ directors and employees to comply with applicablesecurities laws. For this purpose, “tax structure” means any facts relevant tothe federal income tax treatment of the transactions contemplated by thisAgreement but does not include information relating to the identity of any ofthe parties hereto or any of their respective Affiliates.

 

**9.19****        Ratable Sharing.**

 

The Lenders hereby agreeamong themselves that if any of them shall, whether by voluntary payment (otherthan a voluntary prepayment of Revolving Loans made and applied in accordancewith the terms hereof), through the exercise of any right of set-off or banker’slien, by counterclaim or cross action or by the enforcement of any right underthe Loan Documents or otherwise, or as adequate protection of a deposit treatedas cash collateral under the Bankruptcy Code, receive payment or reduction of aproportion of the aggregate amount of principal, interest, amounts payable inrespect of facility fees or commitment fees and other amounts then due andowing to such Lender hereunder or under the other Loan Documents (collectively,the **“Aggregate Amounts Due”** tosuch Lender), which is greater than the proportion received by any other Lenderin respect to of the Aggregate Amounts Due to such other Lender, then theLender receiving such proportionately greater payment shall (i) notify theAdministrative Agent of the receipt of such payment and (ii) apply aportion of such payment to purchase (for cash at face value) participations(which it shall be deemed to have purchased from each seller of a participationsimultaneously upon the receipt by such seller of its portion of such payment),or such other adjustments as shall be equitable, in the Aggregate Amounts Dueto the other Lenders

 

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so that all suchrecoveries of Aggregate Amounts Due shall be shared by all Lenders inproportion to the Aggregate Amounts Due to them; provided that, if allor part of such proportionately greater payment received by such purchasingLender is thereafter recovered from such Lender upon the bankruptcy orreorganization of any Credit Party or otherwise, those purchases shall berescinded and the purchase prices paid for such participations shall bereturned to such purchasing Lender ratably to the extent of such recovery, butwithout interest.  The Credit Parties andeach of their Subsidiaries expressly consents to the foregoing arrangement andagrees that any holder of a participation so purchased may exercise any and allrights of banker’s lien, set-off or counterclaim with respect to any and allmonies owing by the Credit Parties or any of their Subsidiaries to that holderwith respect thereto as fully as if that holder were owed the amount of theparticipation held by that holder.

 

**9.20****        Counterparts; Effectiveness.**

 

This Agreement and anyamendments, waivers, consents or supplements hereto or in connection herewithmay be executed in any number of counterparts, each of which when so executedand delivered shall be deemed an original, but all such counterparts togethershall constitute but one and the same instrument.  This Agreement shall become effective uponthe execution of a counterpart hereof by each of the parties hereto and receiptby the Administrative Agent of written or telephonic notification of such executionand authorization of delivery thereof.

 

**9.21****        Obligations Several;Independent Nature of Lenders’ Rights.**

 

The obligations of theLenders hereunder are several and no Lender shall be responsible for theobligations or Revolving Commitment of any other Lender hereunder.  Nothing contained herein or in any other LoanDocument, and no action taken by the Lenders pursuant hereto or thereto, shallbe deemed to constitute the Lenders as a partnership, an association, a jointventure or any other kind of entity.  Theamounts payable at any time hereunder to each Lender shall be a separate andindependent debt, and each Lender shall be entitled to protect and enforce itsrights arising out hereof and it shall not be necessary for any other Lender tobe joined as an additional party in any proceeding for such purpose.

 

**9.22****        Usury Savings Clause.**

 

Notwithstanding any otherprovision herein, the aggregate interest rate charged with respect to any ofthe Obligations, including all charges or fees in connection therewith deemedin the nature of interest under applicable law shall not exceed the HighestLawful Rate.  As used herein, **“Highest Lawful Rate”** means the maximumlawful interest rate, if any, that at any time or from time to time may becontracted for, charged, or received under the laws applicable to any Lenderwhich are presently in effect or, to the extent allowed by law, under suchapplicable laws which may hereafter be in effect and which allow a highermaximum nonusurious interest rate than applicable laws now allow.  If the rate of interest (determined withoutregard to the preceding sentence) under this Agreement at any time exceeds theHighest Lawful Rate, the outstanding amount of the Loans made hereunder shallbear interest at the Highest Lawful Rate until the total amount of interest duehereunder equals the amount of interest which would have been due hereunder ifthe stated rates of interest set forth in this Agreement had at all times beenin effect.  In addition, if when theLoans made hereunder are repaid in full the total interest due hereunder(taking into account the increase provided for above) is less than the totalamount of interest which would have been due hereunder if the stated rates ofinterest set forth in this Agreement had at all times been

 

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in effect, then tothe extent permitted by law, the Credit Parties shall pay to the AdministrativeAgent an amount equal to the difference between the amount of interest paid andthe amount of interest which would have been paid if the Highest Lawful Ratehad at all times been in effect. Notwithstanding the foregoing, it is the intention of the Lenders andthe 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 ofthe Highest Lawful Rate, then any such excess shall be cancelled automaticallyand, if previously paid, shall at such Lender’s option be applied to theoutstanding amount of the Revolving Loans made hereunder or be refunded to theCredit Parties.

 

**9.23****        Judgment Currency.**

 

The obligation of the Credit Parties to make payments of the principalof and interest on the Obligations in the Currency specified for such paymentshall not be discharged or satisfied by any tender, or any recovery pursuant toany judgment, which is expressed in or converted into any other currency,except to the extent that such tender or recovery shall result in the actualreceipt by the Administrative Agent or the applicable Lender of the full amountof the particular Currency expressed to be payable pursuant to the applicableLoan Document.  The Administrative Agentshall, using all amounts obtained or received from the applicable Credit Partypursuant to any such tender or recovery in payment of principal of and intereston the Obligations, promptly purchase the applicable Currency at the mostfavorable spot exchange rate determined by the Administrative Agent to beavailable to it.  The obligation of theCredit Parties to make payments in the applicable Currency shall be enforceableas an alternative or additional cause of action solely for the purpose ofrecovering in the applicable Currency the amount, if any, by which such actualreceipt shall fall short of the full amount of the currency expressed to bepayable pursuant to the applicable Loan Document.

 

**SECTION 10.**       **AGENTS**

 

**10.1****        Appointment.**

 

ABN AMRO Bank and MSSFare hereby appointed as Syndication Agents hereunder, and each Lender herebyauthorizes the Syndication Agents to act as its agents in accordance with theterms of this Agreement and the other Loan Documents.  Bank One, NA and Bank of America, N.A. arehereby appointed as Documentation Agents hereunder, and each Lender herebyauthorizes the Documentation Agents to act as its agents in accordance with theterms of this Agreement and the other Loan Documents.  Citicorp is hereby appointed by each Lenderas the Administrative Agent hereunder and under the other Loan Documents andeach Lender hereby authorizes the Administrative Agent to act as its agent inaccordance with the terms of this Agreement and the other Loan Documents.  Each Agent hereby agrees to act upon theexpress conditions contained in this Agreement and the other Loan Documents, asapplicable.  The provisions of this Section 10are solely for the benefit of the Agents and the Lenders, and the CreditParties shall have no rights as a third party beneficiary of any of theprovisions thereof.  In performing itsfunctions and duties under this Agreement, each of the Agents shall act solelyas

 

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an agent of theLenders and does not assume and shall not be deemed to have assumed anyobligation towards or relationship of agency or trust with or for any Credit Partyor any of their respective Subsidiaries.

 

**10.2****        Powers and Duties; GeneralImmunity.**

 

**A.****           ****Powers; DutiesSpecified.**  Each Lender irrevocably authorizes each Agentto take such action on such Lender’s behalf and to exercise such powers, rightsand remedies hereunder and under the other Loan Documents as are specificallydelegated or granted to such Agent by the terms hereof and thereof, togetherwith such powers, rights and remedies as are reasonably incidentalthereto.  Each Agent shall have onlythose duties and responsibilities that are expressly specified in thisAgreement and the other Loan Documents. Each Agent may exercise such powers, rights and remedies and performsuch duties by or through its agents or employees.  No Agent shall have, by reason of thisAgreement or any of the other Loan Documents, a fiduciary relationship inrespect of any Lender; and nothing in this Agreement or any of the other LoanDocuments, expressed or implied, is intended to or shall be so construed as toimpose upon any Agent any obligations in respect of this Agreement or any ofthe other Loan Documents except as expressly set forth herein or therein.  Anything herein to the contrarynotwithstanding, none of the Lead Arrangers or Documentation Agents listed onthe cover page hereof shall have any powers, duties or responsibilitiesunder this Agreement or any of the other Loan Documents, except in itscapacity, as applicable, as a Lender or the Issuing Bank hereunder.

 

**B.****           ****No Responsibilityfor Certain Matters.**  No Agent shall beresponsible to any Lender for the execution, effectiveness, genuineness,validity, enforceability, collectability or sufficiency of this Agreement orany other Loan Document or for any representations, warranties, recitals orstatements made herein or therein or made in any written or oral statements orin any financial or other statements, instruments, reports or certificates orany other documents furnished or made by any Agent to the Lenders or by or onbehalf of the Credit Parties to any Agent or any Lender in connection with theLoan Documents and the transactions contemplated thereby or for the financialcondition or business affairs of the Credit Parties or any other Person liablefor the payment of any Obligations, nor shall any Agent be required toascertain or inquire as to the performance or observance of any of the terms,conditions, provisions, covenants or agreements contained in any of the LoanDocuments (other than to confirm receipt of items required under this Agreementor any Loan Document to be delivered to such Agent) or as to the use of theproceeds of the Loans or as to the existence or possible existence of any Eventof Default or Potential Event of Default (unless and until notice describingsuch Event of Default or Potential Event of Default is given to such Agent by aCredit Party or any other Agent) or to make disclosures with respect to theforegoing.  Anything contained in thisAgreement to the contrary notwithstanding, the Administrative Agent shall nothave any liability arising from confirmations of the amount of outstandingRevolving Loans or the component amounts thereof.

 

**C.****           ****ExculpatoryProvisions.**  No Agent nor any of its officers, partners,directors, employees or agents shall be liable to the Lenders for any action takenor omitted by any Agent under or in connection with any of the Loan Documentsexcept to the extent caused by such Agent’s gross negligence or willfulmisconduct.  Each Agent shall be entitledto refrain from any act or the taking of any action (including the failure totake an action) in connection with this

 

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Agreement or any of the other Loan Documents or fromthe exercise of any power, discretion or authority vested in it hereunder orthereunder unless and until such Agent shall have received instructions inrespect thereof from the Requisite Lenders (or such other the Lenders as may berequired to give such instructions under Section 9.6) and, upon receipt ofsuch instructions from the Requisite Lenders (or such other Lenders, as thecase may be), such Agent shall be entitled to act or (where so instructed)refrain from acting, or to exercise such power, discretion or authority, inaccordance with such instructions. Without prejudice to the generality of the foregoing, (i) each ofAgent shall be entitled to rely, and shall be fully protected in relying, uponany communication, instrument or document believed by it to be genuine andcorrect and to have been signed or sent by the proper Person or Persons, andshall be entitled to rely and shall be protected in relying on opinions andjudgments of attorneys (who may be attorneys for the Credit Parties and theirSubsidiaries), accountants, experts and other professional advisors selected byit; and (ii) no Lender shall have any right of action whatsoever againstany Agent as a result of such Agent acting or (where so instructed) refrainingfrom acting under this Agreement or any of the other Loan Documents inaccordance with the instructions of the Requisite Lenders (or such otherLenders as may be required to give such instructions under Section 9.6).

 

**D.****           ****Agents Entitled toAct as Lenders.**  The agency hereby created shall in no wayimpair or affect any of the rights and powers of, or impose any duties or obligationsupon, any Agent in its individual capacity as a Lender hereunder.  With respect to its participation in theRevolving Loans and the Letters of Credit, each Agent shall have the samerights and powers hereunder as any other Lender and may exercise the same asthough it were not performing the duties and functions delegated to ithereunder, and the term “Lender” shall, unless the context clearly otherwiseindicates, include each Agent in its individual capacity.  Any Agent and its Affiliates may acceptdeposits from, lend money to, own Securities of, and generally engage in anykind of banking, trust, financial advisory or other business with the CreditParties or any of their Affiliates as if it were not performing the dutiesspecified herein, and may accept fees and other consideration from the CreditParties for services in connection with this Agreement and otherwise withouthaving to account for the same to Lenders.

 

**10.3****        Representations andWarranties; No Responsibility For Appraisal of Creditworthiness.**

 

Each Lender representsand warrants that it has made its own independent investigation of thefinancial condition and affairs of the Credit Parties and their Subsidiaries inconnection with the making of the Loans hereunder and that it has made andshall continue to make its own appraisal of the creditworthiness of the CreditParties and their Subsidiaries.  No Agentshall have any duty or responsibility, either initially or on a continuingbasis, to make any such investigation or any such appraisal on behalf of theLenders or to provide any Lender with any credit or other information withrespect thereto, whether coming into its possession before the making of theRevolving Loans or at any time or times thereafter, and no Agent shall have anyresponsibility with respect to the accuracy of or the completeness of anyinformation provided to the Lenders.

 

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**10.4****                        Right to Indemnity.**

 

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

 

**10.5****                        Successor Administrative Agent.**

 

The Administrative Agentmay resign at any time by giving thirty (30) days’ prior written notice thereofto the Lenders and the Credit Parties, and the Administrative Agent may beremoved at any time with or without cause by an instrument or concurrentinstruments in writing delivered to the Credit Parties and the AdministrativeAgent and signed by the Requisite Lenders. Upon any such notice of resignation or any such removal, the RequisiteLenders shall have the right, with, so long as no Potential Event of Default orEvent of Default exists, the consent of the Borrower (which consent shall notbe unreasonably withheld or delayed), upon five (5) Business Days’ noticeto the Credit Parties, to select a successor Administrative Agent.  Upon the acceptance of any appointment asAdministrative Agent hereunder by a successor Administrative Agent, thatsuccessor Administrative Agent shall thereupon succeed to and become vestedwith all the rights, powers, privileges and duties of the retiring or removedAdministrative Agent and the retiring or removed Administrative Agent shall bedischarged from its duties and obligations under this Agreement.  After any retiring or removed AdministrativeAgent’s resignation or removal hereunder as Administrative Agent, theprovisions of this Section 10 shall inure to its benefit as to any actionstaken or omitted to be taken by it while it was the Administrative Agent underthis Agreement.

 

**10.6****                        Agents Under Guaranty.**

 

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

 

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**10.7****                        Acknowledgment of PotentialRelated Transactions.**

 

The Credit Parties herebyacknowledge their understanding that each of the Lead Arrangers, each of the Agents and each of theLenders may from time to time effect transactions (for its own account or theaccount of customers), and hold positions in loans or options on loans that maybe the subject of this arrangement.  Inaddition, certain Affiliates of the Lenders are full service securities firmsand as such may from time to time effect transactions (for its own account orthe account of customers), and hold positions, in loans or options on loans orsecurities or options on securities that may be the subject of thisarrangement.  In addition, each of theLead Arrangers, each of the Agentsand each of the Lenders may employ the services of its Affiliates in providingcertain services hereunder and may, subject to Section 9.18, exchange withsuch Affiliates information concerning the Credit Parties and other companiesthat may be the subject of this arrangement.

 

**SECTION 11****.**                     **JOINDER OF SUBSIDIARY BORROWERS**

 

The obligations of theLenders to make Alternative Currency Loans to any Subsidiary Borrower on orafter the Effective Date are subject to the satisfaction of the followingconditions by such Subsidiary Borrower:

 

**A.****                                   ****Joinder Agreement.** The Subsidiary Borrower requesting such Alternative Currency Loan shalldeliver or cause to be delivered to the Administrative Agent on behalf of eachLender a Joinder Agreement duly executed by such Subsidiary Borrower (and theother parties thereto).

 

**B.****                                   ****OrganizationalDocuments.**  The Subsidiary Borrower requesting suchAlternative Currency Loan shall deliver or cause to be delivered to theAdministrative Agent on behalf of each Lender the following:

 

(i)             an originally executed Revolving Loan Note orRevolving Loan Notes substantially in the form of Annex A to the JoinderAgreement to evidence such Lender’s Revolving Loans to such SubsidiaryBorrower;

 

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

 

(iii)       resolutions of the board of directors (or similargoverning body) of such Subsidiary Borrower approving and authorizing theexecution, delivery and performance of the Loan Documents to which it is aparty and certified as of the Joinder Date by the secretary (or other appropriateofficer) of such Subsidiary Borrower as being in full force and effect withoutmodification or amendment;

 

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

 

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

 

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

 

(vi)           an officer’s certificate from an officer of suchSubsidiary Borrower substantially in the form of Exhibit IX, inform and substance satisfactory to the Administrative Agent, to the effect thatall representations and warranties contained in this Agreement and the otherLoan Documents are true, correct and complete; that the Borrower and itsSubsidiaries are not in violation of any of the covenants contained in thisAgreement and the other Loan Documents; that no event shall have occurred andbe continuing or would result from the consummation of the transactionscontemplated by this Agreement, that would constitute an Event of Default or aPotential Event of Default; and that such Subsidiary Borrower has satisfiedeach of the conditions to effectiveness set forth in this Section 11; and

 

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

 

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

 

**D.****                                   ****Payment of AmountsDue. **The Subsidiary Borrower requestingsuch Alternative Currency Loan shall have paid to the Administrative Agent, allreasonable out-of-pocket costs, fees, expenses (including reasonable legal feesand expenses of a single U.S. counsel and special Canadian and/or Irishcounsel, as applicable) incurred by the Administrative Agent in connection withthe negotiation, preparation and execution of a Joinder Agreement and the transactionscontemplated by the joinder of such Subsidiary Borrower as a Credit Partyhereunder.

 

**E.****                                     ****Authorizations andConsents.**

 

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

 

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

 

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

 

**F.****                                     ****SolvencyAssurances.** The AdministrativeAgent shall have received a Financial Condition Certificate from the chieffinancial officer of the Subsidiary Borrower requesting such AlternativeCurrency Loan, dated the Joinder Date, substantially in the form of Exhibit Vannexed hereto and satisfactory to the Administrative Agent, and withappropriate attachments demonstrating that, before and after giving effect tothe transactions contemplated by the Loan Documents, such Subsidiary Borrowerand its Subsidiaries will be Solvent.

 

*[Remainderof page intentionally left blank]*

 

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**IN WITNESS WHEREOF**,the parties hereto have caused this Agreement to be duly executed and deliveredby their respective officers thereunto duly authorized as of the date firstwritten above.

 
| ** ** | **HOSPIRA, INC.**                                                                                                                                                                                                                  |
|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|       |                                                                                                                                                                                                                               |
|       | By:                                                                                                                                                                                                                                |   |   |
|       | Name:                                                                                                                                                                                                                              |
|       | Title:                                                                                                                                                                                                                             |
|       |                                                                                                                                                                                                                               |
|       |                                                                                                                                                                                                                               |
|       | Notice Address:                                                                                                                                                                                                                    |
|       |                                                                                                                                                                                                                               |
|       | 275 N. Field Road                                                                                                                                                                                                                  |
|       | Lake Forest, Il 60064                                                                                                                                                                                                              |
|       | Attention:                                     |
|       | Tel: (847)                   -                           |
|       | Fax: (847)                   -                           |
|       | email:                                                                                                                                                                                                                             |

 

----

 
| ** ** | **CITICORP NORTH AMERICA, INC.**,    |
|------------|--------------------------------------|
|       | as Lender and Administrative  Agent  |
|       |                                 |
|       |                                 |
|       | By:                                  |   |   |
|       | Name:                                |
|       | Title:                               |
|       |                                 |
|       |                                 |
|       | Notice Address:                      |
|       |                                 |
|       | 390 Greenwich Street                 |
|       | New York, NY 10013                   |
|       | Attention: William E. Clark          |
|       | Tel: (212) 816-8183                  |
|       | Fax: (212) 816-8051                  |
|       | email: william.e.clark@citigroup.com |

 

----

 
| ** ** | **CITIGROUP GLOBAL MARKETS INC.**,as Joint Lead Bookrunner and Joint Lead Arranger |
|------------|------------------------------------------------------------------------------------|
|       |                                                                               |
|       |                                                                               |
|       | By:                                                                                |   |   |
|       | Name:                                                                              |
|       | Title:                                                                             |
|       |                                                                               |
|       | Notice Address:                                                                    |
|       |                                                                               |
|       | 390 Greenwich Street                                                               |
|       | New York, NY 10013                                                                 |
|       | Attention: William E. Clark                                                        |
|       | Tel: (212) 816-8183                                                                |
|       | Fax: (212) 816-8051                                                                |
|       | email: william.e.clark@citigroup.com                                               |

 

----

 
| ** ** | **ABN AMRO INCORPORATED**,  as Joint Lead Bookrunner and Joint Lead Arranger |
|------------|------------------------------------------------------------------------------|
|       |                                                                         |
|       |                                                                         |
|       | By:                                                                          |   |   |
|       | Name:                                                                        |
|       | Title:                                                                       |
|       |                                                                         |
|       | Notice Address:                                                              |
|       |                                                                         |
|       | c/o ABN AMRO Bank N.V.                                                       |
|       | 208 South LaSalle Street, Suite 1500                                    |
|       | Chicago, IL 60604-1003                                                       |
|       | Attention: Loan Administration                                               |
|       | Tel: (312) 992-5250                                                          |
|       | Fax: (312) 992-5155                                                          |
|       | email:                                                                       |

 

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| ** ** | **ABN AMRO BANK N.V.**, as Lender and Joint  Syndication Agent |
|------------|----------------------------------------------------------------|
| ** ** | ** **                                                     |
| ** ** | ** **                                                     |
|       | By:                                                            |   |   |
|       | Name:                                                          |
|       | Title:                                                         |
|       |                                                           |
|       | Notice Address:                                                |
|       |                                                           |
|       | 208 South LaSalle Street, Suite 1500                      |
|       | Chicago, IL 60604-1003                                         |
|       | Attention: Loan Administration                                 |
|       | Tel: (312) 992-5250                                            |
|       | Fax: (312) 992-5155                                            |
|       | email:                                                         |

 

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| ** ** | **MORGAN STANLEY SENIOR FUNDING, INC.**, as  Joint Lead Bookrunner, Joint Lead Arranger and Joint  Syndication Agent |
|------------|----------------------------------------------------------------------------------------------------------------------|
|       |                                                                                                                 |
|       | By:                                                                                                                  |   |   |
|       | Name:                                                                                                                |
|       | Title:                                                                                                               |
|       |                                                                                                                 |
|       | Notice Address:                                                                                                      |
|       |                                                                                                                 |
|       | 1633 Broadway, 25th Floor                                                                                            |
|       | New York, NY 10019                                                                                                   |
|       | Attention: James Morgan/Larry Benison                                                                                |
|       | Tel: (212) 537-1470 / (212) 537-1439                                                                                 |
|       | Fax: (212) 537-1867 / 1866                                                                                           |
|       | email:                                                                                                               |

 

----

 
|   | **MORGAN STANLEY BANK,** as Lender          |
|--------|---------------------------------------------|
|   |                                        |
|   |                                        |
|   | By:                                         |   |   |
|   | Name:                                       |
|   | Title:                                      |
|   |                                        |
|   | Notice Address:                             |
|   |                                        |
|   | 1633 Broadway, 25th Floor                   |
|   | New York, NY 10019                          |
|   | Attention: James Morgan/Larry Benison       |
|   | Tel:   (212) 537-1470 / (212) 537-1439 |
|   | Fax: (212) 537-1867 / 1866                  |
|   | email:                                      |

 

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|   | **BANK ONE, NA**, as  Lender and Co-Documentation Agent |
|--------|---------------------------------------------------------|
|   |                                                    |
|   |                                                    |
|   | By:                                                     |   |   |
|   | Name:                                                   | Diane Faunda |
|   | Title:                                                  | Director |
|   |                                                    |
|   | Notice Address:                                         |
|   |                                                    |
|   | 1 Bank One Plaza, Mail Code IL 1-0010                   |
|   | Chicago, IL 60670                                       |
|   | Attention: William Laird                                |
|   | Tel:   (312) 385-7045                              |
|   | Fax:   (312) 385-7098                              |
|   | email: william_laird@bankone.com                        |
|        |                                                         |  |  |  |

 

----

 
|   | **BANK OF AMERICA, N.A.**,  as Lender and Co-  Documentation Agent |
|--------|--------------------------------------------------------------------|
|   |                                                               |
|   |                                                               |
|   | By:                                                                |   |   |
|   | Name:                                                              |
|   | Title:                                                             |
|   |                                                               |
|   | Notice Address:                                                    |
|   |                                                               |
|   | 1850 Gateway Blvd.                                                 |
|   | Concord, CA 94520-3282                                             |
|   | Attention: Pamela S. Greer-Tillman                                 |
|   | Tel: (925) 675-8453                                                |
|   | Fax: (888) 969-2786                                                |
|   | email:                                                             |

 

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|   | **BANK OF MONTREAL**,  as Lender  |
|--------|-----------------------------------|
|   |                              |
|   |                              |
|   | By:                               |   |   |
|   | Name: Joseph W. Linder            |
|   | Title: Vice President             |
|   |                              |
|   | Notice Address:                   |
|   |                              |
|   | 115 South LaSalle Street, 12 West |
|   | Chicago, IL 60603                 |
|   | Attention: Joseph W. Linder       |
|   | Tel: (312) 750-3784               |
|   | Fax: (312) 750-6057               |
|   | email: joseph.linder@bmo.com      |

 

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|   | **THE BANK OF TOKYO-MITSUBISHI, LTD.,  CHICAGO BRANCH,** as Lender |
|--------|--------------------------------------------------------------------|
|   |                                                               |
|   |                                                               |
|   | By:                                                                |   |   |
|   | Name:                                                              |
|   | Title:                                                             |
|   |                                                               |
|   | Notice Address:                                                    |
|   |                                                               |
|   | The Bank of Tokyo-Mitsubishi, Ltd.                                 |
|   | Chicago Branch                                                     |
|   | 227 W. Monroe St., Suite 2300                                 |
|   | Chicago, IL 60606                                                  |
|   | Attention: Corporate Banking—Ms. Diane  Tkach            |
|   | Tel: (312) 696-4663                                                |
|   | Fax: (312) 696-4535                                                |
|   | email: dtkach@btmna.com                                            |

 

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|   | **BNP PARIBAS**, as  Lender |
|--------|-----------------------------|
|   |                        |
|   |                        |
|   | By:                         |   |   |
|   | Name:                       |
|   | Title:                      |
|   |                        |
|   | Notice Address:             |
|   |                        |
|   | 919 Third Avenue            |
|   | 3rd Floor                   |
|   | New York, NY 10022          |
|   | Attention: Gabriel Candamo  |
|   | Tel:   (212) 471-6626  |
|   | Fax:   (212) 471-6695  |
|   | email:                      |

 

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|   | **COMMERZBANK A****G, NEW YORK AND GRAND  CAYMAN BRANCHES**, as Lender |
|--------|------------------------------------------------------------------------|
|   |                                                                   |
|   |                                                                   |
|   | By:                                                                    |   |   |
|   | Name:                                                                  |
|   | Title:                                                                 |
|   |                                                                   |
|   |                                                                   |
|   | By:                                                                    |   |   |
|   | Name:                                                                  |
|   | Title:                                                                 |
|   |                                                                   |
|   | Notice Address:                                                        |
|   |                                                                   |
|   | 20 South Clark Street                                                  |
|   | Suite 2700                                                        |
|   | Chicago, Il 60603                                                      |
|   | Attention: John Marlatt                                                |
|   | Tel:   (312) 795-1625                                             |
|   | Fax:   (312) 236-2827                                             |
|   | email: jmarlatt@cbkna.com                                              |

 

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|   | **SUNTRUST BANK**, as  Lender    |
|--------|----------------------------------|
|   |                             |
|   |                             |
|   | By:                              |   |   |
|   | Name:                            |
|   | Title:                           |
|   |                             |
|   | Notice Address:                  |
|   |                             |
|   | 200 South Orange Avenue, MC 1108 |
|   | Orlando, FL 32801                |
|   | Attention: Arnette Delaine       |
|   | Tel:   (407) 237-2436       |
|   | Fax:   (407) 237-5342       |
|   | email:                           |

 

----

 
|   | **WACHOVIA BANK, N.A.,**  as Lender   |
|--------|---------------------------------------|
|   |                                  |
|   |                                  |
|   | By:                                   |   |   |
|   | Name:                                 |
|   | Title:                                |
|   |                                  |
|   | Notice Address:                       |
|   |                                  |
|   | 201 South College Street CP9, NC 1183 |
|   | Charlotte, NC 28288                   |
|   | Attention: Dianne Taylor              |
|   | Tel:   (704) 715-1876            |
|   | Fax:   (704) 715-0094            |
|   | email:                                |

 

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|   | **THE NORTHERN TRUST COMPANY**,  as Lender |
|--------|--------------------------------------------|
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|   |                                       |
|   | Notice Address:                            |
|   |                                       |
|   | 50 South LaSalle Street                    |
|   | Chicago, IL 60675                          |
|   | Attention: Linda Honda                     |
|   | Tel:   (312) 444-3532                 |
|   | Fax:   (312) 630-1566                 |
|   | email:                                     |

 

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