**Exhibit10.1**

 

 

 

THREE YEAR

CREDIT AGREEMENT

 

among

 

IMS HEALTHINCORPORATED,

as a Borrower,

 

IMS AG,

as a Borrower,

 

IMS JAPAN K.K.,

as a Borrower,

 

THE LENDERSPARTIES HERETO,

 

WACHOVIA BANK,NATIONAL ASSOCIATION,

as AdministrativeAgent,

 

BARCLAYS BANK PLCAND ABN AMRO BANK N.V.,

as Co-SyndicationAgents,

 

and

 

SUNTRUST BANK ANDFORTIS CAPITAL CORP,

asCo-Documentation Agents

 

Dated as of April5, 2004

 

 

WACHOVIA CAPITALMARKETS, LLC,

as Lead Arrangerand Sole Book Runner

 

 

 

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**TABLE OF CONTENTS**

 
| ARTICLE I  DEFINITIONS AND OTHER PROVISIONS |                                                                             |
|---------------------------------------------|----------------------------------------------------------------------------------|
| Section 1.1                                 | Defined Terms.                                                                   |   |
| Section 1.2                                 | Other  Definitional Provisions.                                                  |   |
| Section 1.3                                 | Accounting Terms.                                                                |   |
| Section  1.4                                | Exchange  Rates; Currency Equivalents.                                           |   |
| Section  1.5                                | Redenomination  of Certain Foreign Currencies and Computation of Dollar Amounts. |   |
| Section 1.6                                 | Additional  Foreign Currencies.                                                  |   |
|                                        |                                                                             |   |
| ARTICLE II THE  LOANS; AMOUNT AND TERMS     |                                                                             |
| Section 2.1                                 | Revolving Loans.                                                                 |   |
| Section 2.2                                 | Letter of  Credit Subfacility.                                                   |   |
| Section 2.3                                 | Swingline Loan  Subfacility.                                                     |   |
| Section 2.4                                 | Fees.                                                                            |   |
| Section 2.5                                 | Commitment  Reductions.                                                          |   |
| Section  2.6                                | Prepayments.                                                                     |   |
| Section  2.7                                | Minimum  Principal Amount of Tranches.                                           |   |
| Section 2.8                                 | Default Rate.                                                                    |   |
| Section 2.9                                 | Conversion Options.                                                              |   |
| Section  2.10                               | Computation  of Interest and Fees.                                               |   |
| Section 2.11                                | Computations, Pro  Rata Treatment and Payments.                                  |   |
| Section  2.12                               | Non-Receipt  of Funds by the Administrative Agent.                               |   |
| Section  2.13                               | Inability  to Determine Interest Rate.                                           |   |
| Section  2.14                               | Illegality.                                                                      |   |
| Section  2.15                               | Deposits  Unavailable; Impractibility.                                           |   |
| Section 2.16                                | Increased Cost.                                                                  |   |
| Section 2.17                                | Increased Capital  Costs.                                                        |   |
| Section 2.18                                | Funding Losses.                                                                  |   |
| Section  2.19                               | Taxes.                                                                           |   |
| Section  2.20                               | Indemnification;  Nature of Issuing Lender’s Duties.                        |   |
|                                        |                                                                             |   |
| ARTICLE  III REPRESENTATIONS AND WARRANTIES |                                                                             |
| Section  3.1                                | Existence.                                                                       |   |
| Section  3.2                                | Power  and Authorization; Enforceable Obligations.                               |   |
| Section 3.3                                 | No Legal Bar to  Loans.                                                          |   |
| Section  3.4                                | Financial  Information; Disclosure, etc.                                         |   |
| Section 3.5                                 | Licenses, Permits, etc.                                                          |   |
| Section 3.6                                 | Tax Returns and  Payments.                                                       |   |
| Section 3.7                                 | Title to  Properties; Liens.                                                     |   |
| Section 3.8                                 | Litigation, etc.                                                                 |   |
| Section 3.9                                 | No Default.                                                                      |   |
| Section  3.10                               | Governmental  and Other Consents.                                                |   |
| Section 3.11                                | Regulation U, etc.                                                               |   |
| Section 3.12                                | Investment Company Act;  Other Regulations.                                      |   |

 

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| Section 3.13                           | Compliance with  ERISA.                                            |   |
|----------------------------------------|--------------------------------------------------------------------|--------|
| Section 3.14                           | Environmental  Matters.                                            |   |
|                                   |                                                               |   |
| ARTICLE IV CONDITIONS  PRECEDENT       |                                                               |
| Section  4.1                           | Conditions  to Closing Date and Initial Revolving Loans.           |   |
| Section  4.2                           | Conditions  to All Extensions of Credit.                           |   |
| Section  4.3                           | Condition  to Initial Extension of Credit to Any Foreign Borrower. |   |
|                                   |                                                               |   |
| ARTICLE V AFFIRMATIVE  COVENANTS       |                                                               |
| Section 5.1                            | Financial  Information.                                            |   |
| Section 5.2                            | Use of Proceeds.                                                   |   |
| Section 5.3                            | Payment of  Obligations.                                           |   |
| Section  5.4                           | Conduct  of Business and Maintenance of Existence.                 |   |
| Section  5.5                           | Insurance.                                                         |   |
| Section 5.6                            | Books and Records.                                                 |   |
| Section  5.7                           | Notices.                                                           |   |
| Section 5.8                            | Payment of Taxes.                                                  |   |
| Section 5.9                            | Further Assurances.                                                |   |
| Section 5.10                           | No Dividend  Restrictions.                                         |   |
|                                   |                                                               |   |
| ARTICLE VI NEGATIVE  COVENANTS         |                                                               |
| Section 6.1                            | Limitation on Liens.                                               |   |
| Section 6.2                            | Dissolutions and  Mergers.                                         |   |
| Section 6.3                            | Disposition of  Assets.                                            |   |
| Section 6.4                            | Conduct of Business.                                               |   |
| Section  6.5                           | Compliance  with Federal Reserve Regulations.                      |   |
| Section 6.6                            | Financial Covenants.                                               |   |
| Section 6.7                            | Subsidiary  Indebtedness.                                          |   |
|                                   |                                                               |   |
| ARTICLE VII EVENTS OF  DEFAULT         |                                                               |
| Section 7.1                            | Events of Default.                                                 |   |
| Section 7.2                            | Acceleration;  Remedies.                                           |   |
|                                   |                                                               |   |
| ARTICLE VIII  THE ADMINISTRATIVE AGENT |                                                               |
| Section  8.1                           | Appointment.                                                       |   |
| Section 8.2                            | Delegation of Duties.                                              |   |
| Section 8.3                            | Exculpatory  Provisions.                                           |   |
| Section  8.4                           | Reliance  by the Administrative Agent.                             |   |
| Section 8.5                            | Notice of Default.                                                 |   |
| Section  8.6                           | Non-Reliance  on the Administrative Agent and Other Lenders.       |   |
| Section 8.7                            | Indemnification.                                                   |   |
| Section  8.8                           | Administrative  Agent in its Individual Capacity.                  |   |
| Section 8.9                            | Successor  Administrative Agent.                                   |   |
| Section 8.10                           | Nature of Duties.                                                  |   |
| Section 8.11                           | Other Agents;  Arrangers.                                          |   |
|                                   |                                                               |   |
| ARTICLE IX MISCELLANEOUS               |                                                               |
| Section 9.1                            | Amendments and  Waivers.                                           |   |
| Section  9.2                           | Notices.                                                           |   |

 

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| Section 9.3   | No Waiver;  Cumulative Remedies.                                        |   |
|---------------|-------------------------------------------------------------------------|--------|
| Section 9.4   | Payment of  Expenses and Taxes.                                         |   |
| Section  9.5  | Successors  and Assigns; Participations; Purchasing Lenders.            |   |
| Section 9.6   | Adjustments; Set-off.                                                   |   |
| Section  9.7  | Table  of Contents and Section Headings.                                |   |
| Section 9.8   | Counterparts.                                                           |   |
| Section 9.9   | Effectiveness.                                                          |   |
| Section 9.10  | Severability.                                                           |   |
| Section 9.11  | Integration.                                                            |   |
| Section 9.12  | Governing Law.                                                          |   |
| Section  9.13 | Consent  to Jurisdiction and Service of Process.                        |   |
| Section 9.14  | Confidentiality.                                                        |   |
| Section 9.15  | Acknowledgments.                                                        |   |
| Section 9.16  | Waivers of Jury  Trial.                                                 |   |
| Section 9.17  | Judgment Currency.                                                      |   |
| Section 9.18  | USA Patriot Act  Notice.                                                |   |
| Section  9.19 | Joint  and Several Liability; Maximum Liability; Waiver of Subrogation. |   |

 

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| **Schedules**      |                                       |
|--------------------|--------------------------------------------|
|               |                                       |
| Schedule 1.1       | Account Designation  Letter                |
| Schedule 2.1(a)    | Schedule of Lenders and  Commitments       |
| Schedule 2.1(b)(i) | Form of Notice of  Borrowing               |
| Schedule 2.1(e)    | Form of Revolving Note                     |
| Schedule 2.3(d)    | Form of Swingline Note                     |
| Schedule 2.9       | Form of Notice of  Conversion/Extension    |
| Schedule 4.1(b)    | Form of Secretary’s  Certificate      |
| Schedule 4.1(f)    | Form of Solvency  Certificate              |
| Schedule 9.2       | Schedule of Lenders’  Lending Offices |
| Schedule 9.6(c)    | Form of Commitment  Transfer Supplement    |

 

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This **CREDIT AGREEMENT**, dated as ofApril 5, 2004, is by and among **IMS HEALTH INCORPORATED**,****aDelaware corporation (the “Company”), **IMS AG,**a Swiss corporationand a wholly-owned subsidiary of the Company (the “Swiss Borrower”), **IMS JAPANK.K.**, a Japanese corporation and a wholly-owned subsidiary of theCompany (the “Japanese Borrower”; and together with the Company and theSwiss Borrower, each a “Borrower” and collectively, the “Borrowers”),the several banks and other financial institutions as may from time to timebecome parties to this Credit Agreement (collectively, the “Lenders”;and individually, a “Lender”), and **WACHOVIA BANK, NATIONAL ASSOCIATION**, anational banking association, as administrative agent for the Lenders hereunder(in such capacity, the “Administrative Agent”).

 

W I T N E S S E TH:

 

**WHEREAS**, theCompany has requested that the Lenders make loans and other financial accommodationsto the Borrowers in the amount of up to $270,000,000, as more particularlydescribed herein;

 

**WHEREAS**, theLenders have agreed to make such loans and other financial accommodations tothe Borrowers on the terms and conditions contained herein;

 

**NOW, THEREFORE**, inconsideration of the premises and the mutual covenants contained herein, theparties hereto hereby agree as follows:

 

# **ARTICLEIDEFINITIONS AND OTHER PROVISIONS**

# ** **

## **Section 1.1            DefinedTerms.**

## ** **

As used in this CreditAgreement, terms defined in the preamble to this Credit Agreement have themeanings therein indicated, and the following terms have the followingmeanings:

 

“364-Day CreditAgreement” means that certain 364-Day Credit Agreement dated as of the datehereof among the Company, the Lenders identified therein and Wachovia, asadministrative agent, as amended, modified, supplemented, extended or restatedfrom time to time.

 

“Account DesignationLetter” shall mean the Notice of Account Designation Letter dated theClosing Date from the Borrowers to the Administrative Agent substantially inthe form attached hereto as Schedule 1.1.

 

“Administrative Agent”shall have the meaning set forth in the preamble of this Credit Agreement andany successors in such capacity.

 

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“AdministrativeAgent’s Office” shall mean, with respect to any currency, theAdministrative Agent’s address and, as appropriate, account as set forth on Schedule 9.2with respect to such currency, or such other address or account with respect tosuch currency as the Administrative Agent may from time to time notify to theBorrowers and the Lenders.

 

“Affected Lender”shall have the meaning set forth in Section 2.14(a).

 

“Affiliate” shallmean as to any Person, any other Person which, directly or indirectly,controls, is controlled by, or is under common control with, such Person(excluding any trustee under, or any committee with responsibility foradministering, any Plan).  For purposesof this definition, a Person shall be deemed to be “controlled by” anotherPerson if such Person possesses, directly or indirectly, power either(a) to vote 20% or more of the securities (on a fully diluted basis)having ordinary voting power for the election of directors or managing generalpartners of such Person or (b) to direct or cause the direction of themanagement and policies of such Person whether by contract or otherwise.

 

“Aggregate RevolvingCommitted Amount” shall have the meaning set forth in Section 2.1.

 

“Alternate Base Rate”shall mean, for any day, a rate per annum equal to the greater of (a) thePrime Rate in effect on such day and (b) the Federal Funds Effective Ratein effect on such day plus 1/2 of 1%. For purposes hereof: “Prime Rate” shall mean, at any time, therate of interest per annum publicly announced from time to time by Wachovia atits principal office in Charlotte, North Carolina as its prime rate.  Each change in the Prime Rate shall beeffective as of the opening of business on the day such change in the PrimeRate occurs.  The parties heretoacknowledge that the rate announced publicly by Wachovia as its Prime Rate isan index or base rate and shall not necessarily be its lowest or best ratecharged to its customers or other banks; and “Federal Funds Effective Rate”shall mean, for any day, the weighted average of the rates on overnight federalfunds transactions with members of the Federal Reserve System arranged byfederal funds brokers, as published on the next succeeding Business Day by theFederal Reserve Bank of New York, or, if such rate is not so published onthe next succeeding Business Day, the average of the quotations for the day ofsuch transactions received by the Administrative Agent from three federal fundsbrokers of recognized standing selected by it. If for any reason the Administrative Agent shall have determined (whichdetermination shall be conclusive in the absence of manifest error) that it isunable to ascertain the Federal Funds Effective Rate, including the inabilityor failure of the Administrative Agent to obtain sufficient quotations inaccordance with the terms above, the Alternate Base Rate shall be determinedwithout regard to clause (b) of the first sentence of this definitionuntil the circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due toa change in the Prime Rate or the Federal Funds Effective Rate shall beeffective on the opening of business on the date of such change.

 

“Alternate Base RateLoans” shall mean Loans that bear interest at an interest rate based on theAlternate Base Rate.

 

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“Applicable Percentage”shall mean, for any day, the rate per annum set forth below opposite theapplicable level then in effect, it being understood that the ApplicablePercentage for (a) Revolving Loans which are Alternate Base Rate Loansshall be the percentage set forth under the column “Alternate Base Rate Marginfor Revolving Loans”, (b) Revolving Loans which are LIBOR Rate Loans shallbe the percentage set forth under the column “LIBOR Rate Margin for RevolvingLoans and Letter of Credit Fee”, (c) the Letter of Credit Fee shall be thepercentage set forth under the column “LIBOR Rate Margin for Revolving Loansand Letter of Credit Fee”, and (d) the Commitment Fee shall be the percentageset forth under the column “Commitment Fee”:

 
| **Level** |   | **Leverage  Ratio**                         |   | **Alternate  Base Rate  Margin  for  Revolving  Loans** |   | **LIBOR  Rate  Margin for  Revolving  Loans  and Letter  of  Credit Fee** |   | **Commitment  Fee** |   |
|-----------|--------|---------------------------------------------|--------|---------------------------------------------------------|--------|---------------------------------------------------------------------------|--------|---------------------|--------|
| I         |   | >  2.00 to 1.0                           |   | 0.000                                                   | %      | 0.950                                                                     | %      | 0.225               | %      |
| II        |   | >  1.25 to 1.0 but < 2.00 to 1.0 |   | 0.000                                                   | %      | 0.625                                                                     | %      | 0.150               | %      |
| III       |   | < 1.25 to 1.0                            |   | 0.000                                                   | %      | 0.450                                                                     | %      | 0.100               | %      |

 

The Applicable Percentageshall, in each case, be determined and adjusted quarterly on the datefive (5) Business Days after the date on which the Administrative Agenthas received from the Company the quarterly financial information (in the caseof the first three Fiscal Quarters of the Company), annual financialinformation (in the case of the fourth Fiscal Quarter of the Company), andcertifications required to be delivered to the Administrative Agent and theLenders in accordance with the provisions of Sections 5.1(a), (b)and (c) pursuant to which the Company shall notify the AdministrativeAgent of a change in the applicable pricing level based on the financialinformation contained therein (each an “Interest Determination Date”).  Subject to the last sentence of thisdefinition, such Applicable Percentage shall be effective from such InterestDetermination Date until the next such Interest Determination Date.  Notwithstanding the foregoing, the initialApplicable Percentages shall be set at Level II until the first InterestDetermination Date to occur after the delivery by the Company of the financialstatements and certifications required pursuant to Sections 5.1(a), (b) and (c)for the Fiscal Quarter ended March 31, 2004. If the Company shall fail to provide the quarterly and annual financialinformation and certifications in accordance with the provisions of Sections 5.1(a),(b) and (c), the Applicable Percentage shall, on the date five (5)Business Days after the date by which the Company was so required to providesuch financial information and certifications to the Administrative Agent andthe Lenders, be based on Level I until such time as such information andcertifications are provided, whereupon the Level shall be determined by thethen current Leverage Ratio.

 

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“Applicable Time”shall mean, with respect to any borrowings and payments in Foreign Currencies,the local times in the place of settlement for such Foreign Currencies as maybe determined by the Administrative Agent to be necessary for timely settlementon the relevant date in accordance with normal banking procedures in the placeof payment.

 

“Arranger” shallmean Wachovia Capital Markets, LLC, together with its successors andassigns.

 

“Bankruptcy Code”shall mean the Bankruptcy Code in Title 11 of the United States Code,as amended, modified, succeeded or replaced from time to time.

 

“Bilateral CreditFacilities” shall mean the credit agreements entered into by the Companywith each of ABN AMRO Bank N.V., Barclays Bank PLC, BNP Paribas, Citizens Bankof Massachusetts, Dresdner Bank AG (Frankfurt Branch), Fleet National Bank,Fortis (USA) Finance LLC, Key Corporate Capital Inc., Mizuho Corporate Bank,LTD, SunTrust Bank, The Northern Trust Company, UBS AG, Cayman Islands Branch,Wachovia National Bank.

 

“Borrower” or “Borrowers”shall have the meaning set forth in the first paragraph of this CreditAgreement.

 

“Borrower Obligations”shall mean, without duplication, (a) all of the obligations, indebtednessand liabilities of the Borrowers to the Lenders (including the Issuing Lender)and the Administrative Agent, whenever arising, under this Credit Agreement,the Notes or any of the other Credit Documents including principal, interest,fees, reimbursements and indemnification obligations and other amounts(including, but not limited to, any interest accruing after the occurrence of afiling of a petition of bankruptcy under the Bankruptcy Code with respect toany Borrower, regardless of whether such interest is an allowed claim under theBankruptcy Code) and (b) all liabilities and obligations, wheneverarising, owing from the Borrowers or any of the Company’s Subsidiaries to anyHedging Agreement Provider arising under any Hedging Agreement permittedhereunder.

 

“Borrowing Date”shall mean, in respect of any Loan, the date such Loan is made.

 

“Business Day”shall mean a day other than a Saturday, Sunday or other day on which commercialbanks in Charlotte, North Carolina or New York, New York areauthorized or required by law to close; provided, however, thatwhen used in connection with a rate determination, borrowing or payment inrespect of a LIBOR Rate Loan, (a) the term “Business Day” shall alsoexclude any day on which banks in London, England are not open for dealings indeposits of Dollars or Foreign Currencies, as applicable, in the Londoninterbank market and (b) the term “Business Day” shall also exclude anyday on which banks are not open for foreign exchange dealings between banks inthe exchange of the home country of such foreign currency.

 

“Capital Stock” shall mean (a) in the caseof a corporation, capital stock, (b) in the case of an association orbusiness entity, any and all shares, interests, participations, rights or otherequivalents (however designated) of capital stock, (c) in the case of apartnership, partnership interests (whether general or limited), (d) inthe case of a limited liability company, membership

 

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interests and(e) any other interest or participation that confers on a Person the rightto receive a share of the profits and losses of, or distributions of assets of,the issuing Person.

 

“Change of Control” shall mean the occurrenceof one or more of the following events: (a) any sale, lease, exchange or othertransfer (in a single transaction or a series of related transactions) of allor substantially all of the assets of the Company to any Person or “group”(within the meaning of the Exchange Act and the rules of the SEC thereunder asin effect on the date hereof), (b) the acquisition or ownership, directly orindirectly, beneficially or of record, by any Person or “group” (within themeaning of the Exchange Act and the rules of the SEC thereunder as in effect onthe date hereof) of 35% or more of the outstanding shares of Voting Stock ofthe Company, or (c) the occupation of a majority of the seats (other thanvacant seats) on the board of directors of the Company by Persons who wereneither (i) nominated by the current board of directors or (ii) appointed bydirectors so nominated.

 

“Closing Date”shall mean the date of this Credit Agreement.

 

“Code” shall meanthe Internal Revenue Code of 1986, as amended from time to time, and theregulations promulgated and rulings issued thereunder.  Section references to the Code are to theCode as in effect at the date of this Agreement and any subsequent provisionsof the Code amendatory thereof, supplemental thereto or substituted therefore.

 

“Commitment” shallmean the Revolving Commitment, the LOC Commitment and the Swingline Commitment,individually or collectively, as appropriate.

 

“Commitment Fee”shall have the meaning set forth in Section 2.4(a).

 

“Commitment Percentage”shall mean the Revolving Commitment Percentage and/or the LOC CommitmentPercentage, as appropriate.

 

“Commitment Period”shall mean the period from and including the Closing Date to but not includingthe Maturity Date.

 

“Commitment TransferSupplement” shall mean a Commitment Transfer Supplement, substantially inthe form of Schedule 9.6(c).

 

“Company” shallhave the meaning set forth in the first paragraph of this Credit Agreement.

 

“Consolidated CapitalExpenditures” shall mean, for any period of four consecutive FiscalQuarters, all capital expenditures of the Company and its Subsidiaries(including without limitation additions to computer software) on a consolidatedbasis for such period, all as determined in accordance with GAAP.

 

“Consolidated EBITDA”shall mean, for any period of four consecutive Fiscal Quarters, the Company andits Subsidiaries’ income before income taxes plus, (i) Consolidated InterestExpense, (ii) depreciation and amortization expense, (iii) income (orminus loss) from

 

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discontinued operations,and (iv) charges for the in-process, research and development related toan acquisition, all as the same are or would be set forth in a statement of theincome of the Company for such period.

 

“Consolidated InterestExpense” shall mean, for any period of four consecutive Fiscal Quarters,the total interest expense of the Company and its Subsidiaries, as the samewould be set forth in a statement of income of the Company and its Subsidiariesfor such period.

 

“Consolidated TotalDebt” shall mean, as of any particular time and after eliminatinginter-company items, all Indebtedness of the Company and its Subsidiaries, allas consolidated and determined in accordance with GAAP, but shall not includeHedging Agreements.

 

“ContractualObligation” shall mean, as to any Person, any provision of any securityissued by such Person or of any contract, agreement, instrument or undertakingto which such Person is a party or by which it or any of its property is bound.

 

“Credit Agreement”shall mean this Credit Agreement, as amended, modified or supplemented fromtime to time in accordance with its terms.

 

“Credit Documents”shall mean this Credit Agreement, each of the Notes, the Letters of Credit, anyCommitment Transfer Supplement and the LOC Documents and all other agreements,documents, certificates and instruments delivered to the Administrative Agentor any Lender by any Borrower in connection therewith (other than anyagreement, document, certificate or instrument related to a Hedging Agreement).

 

“Default” shallmean any event which with notice, the lapse of time or both would constitute anEvent of Default.

 

“Defaulting Lender”shall mean, at any time, any Lender that, at such time (a) has failed tomake a Loan required pursuant to the term of this Credit Agreement, includingthe funding of a Participation Interest in accordance with the terms hereofabsent a good faith dispute relating to the Credit Agreement or the Extensionsof Credit hereunder, (b) has failed to pay to the Administrative Agent orany Lender an amount owed by such Lender pursuant to the terms of this CreditAgreement absent a good faith dispute relating to the Credit Agreement or theExtensions of Credit hereunder, or (c) has been deemed insolvent or hasbecome subject to a bankruptcy or insolvency proceeding or to a receiver,trustee or similar official.

 

“Determination Date”means with respect to any Extension of Credit:

 

(a)           in connection with the origination ofany new Extension of Credit, the Business Day which is the earliest of the datesuch credit is extended, the date the rate is set or the date the bid isaccepted, as applicable;

 

(b)           in connection with any extension orconversion or continuation of an existing Loan, the last Business Day of eachmonth or the Business Day which is the

 

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earlier of the date such advance is extended, converted or continued,or the date the rate is set, as applicable, in connection with any extension,conversion or continuation;

 

(c)           in connection with any extension ofan existing Letter of Credit, the last Business Day of each month or theBusiness Day which is the earlier of the date such Letter of Credit isextended; or

 

(d)           the date of any reduction of theRevolving Committed Amount pursuant to the terms of Section 2.5; and

 

in addition to theforegoing, such additional dates not more frequently than once a month as maybe determined by the Administrative Agent. For purposes of determining availability hereunder, the rate of exchangefor any Foreign Currency shall be the Spot Rate.

 

“Dollar Amount”shall mean, at any time, (a) with respect to Dollars or an amountdenominated in Dollars, such amount and (b) with respect to an amount ofany Foreign Currency or an amount denominated in such Foreign Currency, theequivalent amount thereof in Dollars as determined by the Administrative Agentat such time on the basis of the Spot Rate (determined in respect of the mostrecent Revaluation Date) for the purchase of Dollars with such ForeignCurrency.

 

“Dollars” and “$”shall mean dollars in lawful currency of the United States of America.

 

“Domestic LendingOffice” shall mean, initially, the office of each Lender designated as suchLender’s Domestic Lending Office shown on Schedule 9.2; andthereafter, such other office of such Lender as such Lender may from time totime specify to the Administrative Agent and the Borrowers as the office ofsuch Lender at which Alternate Base Rate Loans of such Lender are to be made.

 

“EMU” shall mean Economic and Monetary Union ascontemplated in the Treaty on European Union.

 

“EMU Legislation” shall mean legislativemeasures of the European Council (including without limitation European Councilregulations) for the introduction of, changeover to or operation of a single orunified European currency (whether known as the Euro or otherwise), being inpart the implementation of the third stage of EMU.

 

“Environmental Laws”shall mean any and all applicable federal, state, local or municipal laws,rules, orders, regulations, statutes, ordinances, codes, decrees, requirementsof any Governmental Authority regulating, relating to or imposing liability orstandards of conduct concerning environmental protection measures, includingwithout limitation, Hazardous Materials, as now or may at any time be in effectduring the term of this Credit Agreement.

 

“ERISA” shall meanthe Employee Retirement Income Security Act of 1974, as amended from time totime, and the regulations promulgated and the rulings issued thereunder.  Section references to ERISA are to ERISA asin effect at the date of this Credit Agreement and any

 

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subsequent provisions ofERISA amendatory thereof, supplemental thereto or substituted therefor.

 

“ERISA Affiliate”shall mean each person (as defined in Section 3(9) of ERISA) which togetherwith the Company or any other Borrower would be deemed a “single employer” (i)within the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as aresult of the Company or any other Borrower being or having been a generalpartner of such person.

 

“Euro” shall mean the single currency ofParticipating Member States of the European Union.

 

“Euro Unit” shallmean the currency unit of the Euro.

 

“Eurodollar ReservePercentage” shall mean for any day, the percentage (expressed as a decimaland rounded upwards, if necessary, to the next higher 1/100th of 1%) which isin effect for such day as prescribed by the Federal Reserve Board (or anysuccessor) for determining the maximum reserve requirement (including withoutlimitation any basic, supplemental or emergency reserves) in respect ofEurocurrency liabilities, as defined in Regulation D of such Board as ineffect from time to time, or any similar category of liabilities for a memberbank of the Federal Reserve System in New York City.

 

“Event of Default”shall mean any of the events specified in Section 7.1; provided, however,that any requirement for the giving of notice or the lapse of time, or both, orany other condition, has been satisfied.

 

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

 

“Extension of Credit”shall mean, as to any Lender, the making of a Loan by such Lender or theissuance of, or participation in, a Letter of Credit or Loan by such Lender.

 

“Federal FundsEffective Rate” shall have the meaning set forth in the definition of“Alternate Base Rate”.

 

“Fee Letter” shallmean the letter agreement dated December 2, 2003 addressed to the Company fromthe Administrative Agent and the Arranger, as amended, modified or otherwisesupplemented.

 

“Fiscal Quarter”shall mean any quarter of a Fiscal Year.

 

“Fiscal Year”shall mean any period of twelve consecutive calendar months ending on December31; references to a Fiscal Year with a number corresponding to any calendaryear (e.g., the 2003 Fiscal Year) refer to the Fiscal Year ending on theDecember 31 occurring during such calendar year.

 

“Fixed Charge CoverageRatio” shall mean, for any Fiscal Quarter, the ratio of(a) Consolidated EBITDA to (b) Fixed Charges as of the last day of suchFiscal Quarter.

 

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“Fixed Charges”shall mean, with respect to the Company and its Subsidiaries on a consolidatedbasis, for the four Fiscal Quarters most recently concluded, the sum of (i)Consolidated Interest Expense plus (ii) Scheduled Funded Debt Payments plus(iii) Consolidated Capital Expenditures plus (v) additions to computersoftware.

 

“Foreign Borrower”shall mean either of the Swiss Borrower or the Japanese Borrower.

 

“Foreign Currency”shall mean (a) Euros, (b) Swiss Francs, (c) Japanese Yen and (d) any otherfreely available currency which is freely transferable and freely convertibleinto Dollars and in which dealings in deposits are carried on in the Londoninterbank market, which shall be requested by the Company and approved by eachLender.

 

“Foreign CurrencyEquivalent” shall mean, with respect to any amount denominated in Dollars,the equivalent amount thereof in the applicable Foreign Currency as determinedby the Administrative Agent at such time on the basis of the Spot Rate(determined in respect of the most recent Revaluation Date) for the purchase ofsuch Foreign Currency with Dollars.

 

“Foreign CurrencyFronting Bank” shall mean the Administrative Agent or, to the extent anyForeign Borrower would suffer adverse tax consequences as a result of a ForeignCurrency Loan being funded to such Foreign Borrower by the AdministrativeAgent, any other Lender who from time to time agrees to serve as a frontingbank hereunder, as may be agreed upon by such Lender, the Administrative Agentand the Company.

 

“Foreign CurrencyParticipant” shall mean any Lender who is unable to fund a Foreign CurrencyLoan in a particular Foreign Currency to the extent such Lender has notified the Foreign Currency Fronting Bankin writing as of (i) the Closing Date or (ii) the date such Lender becomes aLender pursuant to a Commitment Transfer Supplement delivered pursuant toSection 9.5 that such Lender is unable to fund Foreign Currency Loans in suchForeign Currency.

 

“Foreign Currency Loan”shall mean any Loan denominated in a Foreign Currency.

 

“Fronted Foreign CurrencyLoans” shall have the meaning set forth in Section 2.1(b)(iii).

 

“GAAP” shall meangenerally accepted accounting principles, applied on a basis consistent withthe principles used in the preparation of the Company’s annual balance sheetand income statement as of and for the year ending December 31, 2003, copies ofwhich have previously been delivered to the Administrative Agent, with suchchanges as may be approved by the Company’s independent auditors.

 

“Government Acts”shall have the meaning set forth in Section 2.19(a).

 

“GovernmentalAuthority” shall mean any nation or government, any state or otherpolitical subdivision thereof and any entity exercising executive, legislative,judicial, regulatory or administrative functions of or pertaining togovernment.

 

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“Hazardous Materials”shall mean any hazardous materials, hazardous wastes, hazardous constituents,hazardous or toxic substances, petroleum products (including crude oil or anyfraction thereof), defined or regulated as such in or under any EnvironmentalLaw.

 

“Hedging AgreementProvider” shall mean any Person that enters into a Hedging Agreement with aBorrower or any of its Subsidiaries that is permitted hereunder to the extentsuch Person is a Lender, an Affiliate of a Lender or any other Person that wasa Lender (or an Affiliate of a Lender) at the time it entered into the HedgingAgreement but has ceased to be a Lender (or whose Affiliate has ceased to be aLender) under the Credit Agreement.

 

“Hedging Agreements”shall mean, with respect to any Person, any interest rate swap, cap or collaragreement or similar arrangement between such Person and one or morecounterparties, any foreign currency exchange agreement, currency protectionagreements, commodity purchase or option agreements or other interest orexchange rate or commodity price hedging agreements.

 

“Indebtedness”shall mean, as to any Person, at a particular time without duplication, (a) allindebtedness of such Person for borrowed money or on account of advances madeto such person or for the deferred purchase price of property (excludingaccounts payable to trade creditors for goods and services which are incurredin the ordinary course of business and on customary trade terms), in respect ofwhich such Person is liable or evidenced by any bond, debenture, note or otherinstrument, (b) indebtedness arising under acceptance facilities and the faceamount of all letters of credit issued for the account of such person and,without duplication, all drafts drawn thereunder, (c) all liabilities securedby any lien on any property owned by such Person even though it has not assumedor otherwise become liable for the payment thereof, (d) obligations underfinancial leases; (e) all indebtedness of others with respect to which suchperson has provided a guarantee or otherwise has agreed to become directly orindirectly liable; and (f) all obligations under Hedging Agreements.

 

“InterestDetermination Date” shall have the meaning assigned thereto in thedefinition of “Applicable Percentage”.

 

“Interest Payment Date”shall mean (a) as to any Alternate Base Rate Loan or Swingline Loan, thelast Business Day of each March, June, September and December and on theapplicable Maturity Date, (b) as to any LIBOR Rate Loan having an InterestPeriod of three months or less, the last day of such Interest Period,(c) as to any LIBOR Rate Loan having an Interest Period longer than threemonths, each day which is three months after the first day of such InterestPeriod and the last day of such Interest Period and (d) as to any Loan which isthe subject of a mandatory prepayment required pursuant to Section 2.6(b),the date on which such mandatory prepayment is due.

 

“Interest Period”shall mean, with respect to any LIBOR Rate Loan,

 

(a)             initially, the period commencing onthe Borrowing Date or conversion date, as the case may be, with respect to suchLIBOR Rate Loan and ending fourteen days, one, two, three, six or twelve monthsthereafter (in the case of twelve months, only with

 

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the prior consent of theAdministrative Agent and each of the Lenders (in its sole discretion)), subjectto availability, as selected by the applicable Borrower in the Notice of Borrowingor Notice of Conversion given with respect thereto; and

 

(b)             thereafter, each period commencingon the last day of the immediately preceding Interest Period applicable to suchLIBOR Rate Loan and ending fourteen days, one, two, three, six or twelve monthsthereafter (in the case of twelve months, only with the prior consent of theAdministrative Agent and each of the Lenders (in its sole discretion)), asselected by the applicable Borrower by irrevocable notice to the AdministrativeAgent not less than three Business Days prior to the last day of the thencurrent Interest Period with respect thereto;

 

providedthat the foregoing provisions are subject to the following:

 

(i)            if any Interest Period pertaining toa LIBOR Rate Loan would otherwise end on a day that is not a Business Day, suchInterest Period shall be extended to the next succeeding Business Day unlessthe result of such extension would be to carry such Interest Period intoanother calendar month in which event such Interest Period shall end on theimmediately preceding Business Day;

 

(ii)           any Interest Period pertaining to aLIBOR Rate Loan that begins on the last Business Day of a calendar month (or ona day for which there is no numerically corresponding day in the calendar monthat the end of such Interest Period) shall end on the last Business Day of therelevant calendar month;

 

(iii)          if the applicable Borrower shall failto give notice as provided above, such Borrower shall be deemed to haveselected an Alternate Base Rate Loan to replace the affected LIBOR Rate Loan;

 

(iv)          no Interest Period in respect of anyLoan shall extend beyond the applicable Maturity Date; and

 

(v)           no more than eight (8) LIBORRate Loans may be in effect at any time. For purposes hereof, LIBOR Rate Loans with different Interest Periodsshall be considered as separate LIBOR Rate Loans, even if they shall begin onthe same date and have the same duration, although borrowings, extensions andconversions may, in accordance with the provisions hereof, be combined at theend of existing Interest Periods to constitute a new LIBOR Rate Loan with asingle Interest Period.

 

“Issuing Lender”shall mean Wachovia.

 

“Issuing Lender Fees”shall have the meaning set forth in Section 2.4(c).

 

“Japanese Borrower”shall have the meaning set forth in the first paragraph of this CreditAgreement.

 

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“Japanese Yen” or“JPY” shall mean Japanese yen, the lawful currency of Japan.

 

“Lender” shallhave the meaning set forth in the first paragraph of this Credit Agreement.

 

“Letter of Credit”shall mean any letter of credit issued by the Issuing Lender pursuant to theterms hereof, as such Letter of Credit may be amended, modified, extended,renewed or replaced from time to time.

 

“Letter of CreditFacing Fee” shall have the meaning set forth in Section 2.4(b).

 

“Letter of Credit Fee”shall have the meaning set forth in Section 2.4(b).

 

“Leverage Ratio”shall mean, for any Fiscal Quarter, the ratio of (a) Consolidated TotalDebt to (b) Consolidated EBITDA as of the last day of such Fiscal Quarter.

 

“LIBOR” shallmean, for any LIBOR Rate Loan for any Interest Period therefor, the rate perannum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing onTelerate Page 3750 (or any successor page) as the London interbank offered ratefor deposits in Dollars or the applicable Foreign Currency, as appropriate, atapproximately 11:00 A.M. (London time) two Business Days prior to thefirst day of such Interest Period for a term comparable to such InterestPeriod.  If for any reason such rate isnot available, the term “LIBOR” shall mean, for any LIBOR Rate Loan for anyInterest Period therefor, the rate per annum (rounded upwards, if necessary, tothe nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the Londoninterbank offered rate for deposits in Dollars or the applicable ForeignCurrency, as appropriate, at approximately 11:00 A.M. (London time) twoBusiness Days prior to the first day of such Interest Period for a term comparableto such Interest Period; provided, however, if more than one rateis specified on Reuters Screen LIBO Page, the applicable rate shall be thearithmetic mean of all such rates (rounded upwards, if necessary, to thenearest 1/100 of 1%).  If, for any reason,neither of such rates is available, then “LIBOR” shall mean the rate per annumat which, as determined by the Administrative Agent, Dollars in an amountcomparable to the Loans then requested are being offered to leading banks atapproximately 11:00 A.M. London time, two (2) Business Days prior tothe commencement of the applicable Interest Period for settlement inimmediately available funds by leading banks in the London interbank market fora period equal to the Interest Period selected.

 

“LIBOR Lending Office”shall mean, initially, the office(s) of each Lender designated as such Lender’sLIBOR Lending Office shown on Schedule 9.2; and thereafter, suchother office of such Lender as such Lender may from time to time specify to theAdministrative Agent and the Borrowers as the office of such Lender at whichthe LIBOR Rate Loans of such Lender are to be made.

 

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“LIBOR Rate” shallmean a rate per annum (rounded upwards, if necessary, to the next higher1/100th of 1%) determined by the Administrative Agent pursuant to the followingformula:

 
| LIBOR Rate = |   | LIBOR                                 |
|--------------|--------|---------------------------------------|
|         |   | 1.00 -  Eurodollar Reserve Percentage |

 

“LIBOR Rate Loan”shall mean Loans the rate of interest applicable to which is based on the LIBORRate.

 

“Lien” shall meanany mortgage, pledge, hypothecation, assignment, deposit arrangement,encumbrance, lien (statutory or other), or preference, priority or othersecurity agreement or preferential arrangement of any kind or nature whatsoever(including, without limitation, any conditional sale or other title retentionagreement and any financial lease having substantially the same economic effectas any of the foregoing).

 

“Loan” shall meana Revolving Loan and/or a Swingline Loan, as appropriate.

 

“LOC Commitment”shall mean the commitment of the Issuing Lender to issue Letters of Credit andwith respect to each Lender, the commitment of such Lender to purchaseparticipation interests in the Letters of Credit up to such Lender’s LOCCommitted Amount as specified in Schedule 2.1(a), as such amountmay be reduced from time to time in accordance with the provisions hereof.

 

“LOC CommitmentPercentage” shall mean, for each Lender, the percentage identified as itsLOC Commitment Percentage on Schedule 2.1(a), as such percentagemay be modified in connection with any assignment made in accordance with theprovisions of Section 9.6(c).

 

“LOC Committed Amount”shall mean, collectively, the aggregate amount of all of the LOC Commitments ofthe Lenders to issue and participate in Letters of Credit as referenced inSection 2.2 and, individually, the amount of each Lender’s LOC Commitmentas specified in Schedule 2.1(a).

 

“LOC Documents”shall mean, with respect to any Letter of Credit, such Letter of Credit, anyamendments thereto, any documents delivered in connection therewith, anyapplication therefor, and any agreements, instruments, guarantees or otherdocuments (whether general in application or applicable only to such Letter ofCredit) governing or providing for (a) the rights and obligations of theparties concerned or (b) any collateral security for such obligations.

 

“LOC Obligations”shall mean, at any time, the sum of (a) the maximum amount which is, or atany time thereafter may become, available to be drawn under Letters of Creditthen outstanding, assuming compliance with all requirements for drawingsreferred to in such Letters of Credit plus (b) the aggregate amountof all drawings under Letters of Credit honored by the Issuing Lender but nottheretofore reimbursed.

 

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“Mandatory Borrowing”shall have the meaning set forth in Section 2.2 or****Section 2.3(b)(ii), asthe context may require.

 

“Material AdverseChange” shall mean a material adverse change in the financial condition,operations, assets, business, properties or prospects of the Company,individually or the Company and its Subsidiaries taken as a whole.

 

“Material Subsidiary” shall mean, as of anydate of determination, any Subsidiary that (a) accounted for at least fivepercent (5%) of consolidated revenues of the Company and its Subsidiaries, ineach case ending on the last day of the last of the last Fiscal Quarterimmediately preceding the date as of which any such determination is made; or (b)has assets which represent at least five percent (5%) of the consolidatedassets of the Company and its Subsidiaries as of the last day of the lastFiscal Quarter immediately preceding the date as of which any suchdetermination is made; all of which, with respect to clauses (a) and (b) shallbe as reflected on the financial statements of the Company for the period, oras of the date in question. Notwithstanding the foregoing, each of the Foreign Borrowers shall bedeemed to be Material Subsidiaries.

 

“Maturity Date”shall mean April 5, 2007.

 

“National CurrencyUnit” shall mean a fraction or multiple of one Euro Unit expressed in unitsof the former national currency of a Participating Member State.

 

“Note” or “Notes”shall mean the Revolving Notes and/or the Swingline Note, collectively,separately or individually, as appropriate.

 

“Notice of Borrowing”shall mean the written notice of borrowing as referenced and defined inSection 2.1(b)(i) or 2.3(b)(i), as appropriate.

 

“Notice ofConversion/Extension” shall mean the written notice of conversion orextension as referenced and defined in Section 2.9.

 

“Participant”shall have the meaning set forth in Section 9.6(b).

 

“Participating MemberState” shall mean each country so described in any EMU Legislation.

 

“ParticipationInterest” shall mean the purchase by a Lender of a participation interestin Letters of Credit as provided in Section 2.2 and in Swingline Loans asprovided in Section 2.3.

 

“PBGC” shall meanthe Pension Benefit Guaranty Corporation established pursuant to Subtitle A ofTitle IV of ERISA.

 

“Periodical SEC Report”shall mean any report on Form 10-K or 10-Q of the Company filed with the SECpursuant to Sections 13(a) and 15(d) of the Exchange Act for the most recentlyconcluded Fiscal Year or Fiscal Quarter, as applicable.

 

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“Person” shallmean an individual, partnership, corporation, limited liability company,business trust, joint stock company, trust, unincorporated association, jointventure, Governmental Authority or other entity of whatever nature.

 

“Plan” shall meanany multi-employer or single-employer plan as defined in Section 4001 of ERISA,which is maintained or contributed to by (or to which there is an obligation tocontribute of) the Company or a Subsidiary of the Company or an ERISA Affiliateand each plan for the five-year period immediately following the latest date,on which the Company or a Subsidiary of the Company or an ERISA Affiliatemaintained, contributed to or has an obligation to contribute to such plan.

 

“Prime Rate” shallhave the meaning set forth in the definition of Alternate Base Rate.

 

“Purchasing Lenders”shall have the meaning set forth in Section 9.6(c).

 

“Register” shallhave the meaning set forth in Section 9.6(d).

 

“Related Fund”shall mean, with respect to any Lender or other Person who invests incommercial bank loans in the ordinary course of business, any other fund ortrust or entity that invests in commercial bank loans in the ordinary course ofbusiness and is advised or managed by such Lender, by an Affiliate of suchLender or other Persons or the same investment advisor as such Lender or by anAffiliate of such Lender or investment advisor.

 

“Reportable Event”shall mean any of the events set forth in Section 4043(c) of ERISA withrespect to a Plan, other than those events as to which the thirty-day noticeperiod is waived under the regulations promulgated thereunder.

 

“Required Lenders”shall mean, at any time, Lenders holding in the aggregate a majority of(a) the Commitments (and Participation Interests therein) or (b) ifthe Commitments have been terminated, the aggregate principal Dollar Amount(determined as of the most recent Determination Date) of the outstanding Loansand Participation Interests (including Fronted Foreign Currency Loans of theForeign Currency Participants and the Participation Interests of the IssuingLender in any Letters of Credit and of the Swingline Lender in Swingline Loans)in provided, however, that if any Lender shall be a DefaultingLender at such time, then there shall be excluded from the determination ofRequired Lenders, the Borrower Obligations (including Participation Interests)owing to such Defaulting Lender and such Defaulting Lender’s Commitments, orafter termination of the Commitments, the principal balance of the BorrowerObligations owing to such Defaulting Lender.

 

“Requirement of Law”shall mean, as to any Person, the certificate of incorporation and bylaws orother organizational or governing documents of such Person, and each law,treaty, rule or regulation or determination of an arbitrator or a court orother Governmental Authority, in each case applicable to or binding upon suchPerson or any of its property or to which such Person or any of its property issubject.

 

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“Responsible Officer”shall mean, as to any Borrower, the Chief Executive Officer, the President, theChief Financial Officer, the Treasurer or any other officer acting in asubstantially similar capacity.

 

“Revaluation Date”shall mean each of the following: (a) each date a LIBOR Rate Loan denominated in a Foreign Currencyis made pursuant to Section 2.1; (b) each date a LIBOR Rate Loandenominated in a Foreign Currency is continued pursuant to Section 2.9;(c) the last Business Day of each calendar month; and (d) suchadditional dates as the Administrative Agent or the Required Lenders shallspecify.

 

“Revolving Commitment”shall mean, with respect to each Lender, the commitment of such Lender to makeRevolving Loans in an aggregate principal Dollar Amount at any time outstandingup to such Lender’s Revolving Committed Amount.

 

“Revolving CommitmentPercentage” shall mean, for each Lender, the percentage identified as itsRevolving Commitment Percentage on Schedule 2.1(a), as suchpercentage may be modified in connection with any assignment made in accordancewith the provisions of Section 9.6(c).

 

 “Revolving Committed Amount” shallmean the amount of each Lender’s Revolving Commitment as specified on Schedule 2.1(a),as such amount may be reduced from time to time in accordance with theprovisions hereof.

 

“Revolving Loans”shall have the meaning set forth in Section 2.1.

 

“Revolving Note”or “Revolving Notes” shall mean the promissory notes of the Borrowers infavor of each of the Lenders evidencing the Revolving Loans provided pursuantto Section 2.1(e), individually or collectively, as appropriate, as suchpromissory notes may be amended, modified, supplemented, extended, renewed or replacedfrom time to time.

 

“Sale” means anysale, transfer, assignment, lease, conveyance, exchange, swap or otherdisposition.

 

“Scheduled Funded DebtPayments” shall mean, as of any date of determination, the sum of allscheduled payments of principal by the Company and its Subsidiaries made onIndebtedness classified as “long-term” under GAAP for the four consecutiveFiscal Quarters prior to such date of determination.

 

“SEC” shall meanthe U.S. Securities and Exchange Commission.

 

“Spot Rate” shallmean, with respect to any Foreign Currency, the rate quoted by Wachovia as thespot rate for the purchase by Wachovia of such Foreign Currency with Dollarsthrough its principal foreign exchange trading office at approximately11:00 a.m. on the date two Business Days prior to the date as of which theforeign exchange computation is made.

 

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“Subsidiary” shallmean any corporation or other entity of which the Company owns, directly orindirectly, such number of outstanding shares or other voting interests as havemore than fifty percent (50%) of the ordinary voting power for the election ofdirectors.  Unless otherwise qualified,all references to a “Subsidiary” or to “Subsidiaries” in this Credit Agreementshall refer to a Subsidiary or Subsidiaries of the Company.

 

“Swingline Commitment”shall mean the commitment of the Swingline Lender to make Swingline Loans in anaggregate principal amount at any time outstanding up to the SwinglineCommitted Amount, and the commitment of the Lenders to purchase participationinterests in the Swingline Loans as provided in Section 2.3(b)(ii), assuch amounts may be reduced from time to time in accordance with the provisionshereof.

 

“Swingline CommittedAmount” shall mean the amount of the Swingline Lender’s SwinglineCommitment as specified in Section 2.3(a).

 

“Swingline Lender”shall mean the Administrative Agent.

 

“Swingline Loan”or “Swingline Loans” shall have the meaning set forth inSection 2.3(a).

 

“Swingline Note”shall mean the promissory note of each of the Borrowers in favor of theSwingline Lender evidencing the Swingline Loans provided pursuant toSection 2.3(d), as such promissory note may be amended, modified,supplemented, extended, renewed or replaced from time to time.

 

“Swiss Borrower”shall have the meaning set forth in the first paragraph of this CreditAgreement.

 

“Swiss Francs” or“CHF” shall mean swiss francs, the lawful currency of Switzerland.

 

“Taxes” shall havethe meaning set forth in Section 2.19.

 

“Tranche” shallmean the collective reference to LIBOR Rate Loans whose Interest Periods beginand end on the same day.  A Tranche maysometimes be referred to as a “LIBOR Tranche”.

 

“Transfer EffectiveDate” shall have the meaning set forth in each Commitment TransferSupplement.

 

“Treaty on EuropeanUnion” shall mean the Treaty of Rome of March 25, 1957, as amended bythe Single European Act 1986 and the Maastricht Treaty (which was signed atMaastricht on February 1, 1992 and came into force on November 1,1993), as amended from time to time.

 

“Type” shall mean,as to any Loan, its nature as an Alternate Base Rate Loan or LIBOR Rate Loan,as the case may be.

 

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“Voting Stock”shall mean, with respect to any Person, Capital Stock issued by such Person theholders of which are ordinarily, in the absence of contingencies, entitled tovote for the election of directors (or persons performing similar functions) ofsuch Person, even though the right so to vote has been suspended by thehappening of such a contingency.

 

“Wachovia” shallmean Wachovia Bank, National Association, together with its successors and/orassigns.

 

## **Section1.2            Other DefinitionalProvisions.**

## ** **

(a)           Unless otherwise specified therein,all terms defined in this Credit Agreement shall have the defined meanings whenused in the Notes or other Credit Documents or any certificate or otherdocument made or delivered pursuant hereto.

 

(b)           The words “hereof”, “herein” and“hereunder” and words of similar import when used in this Credit Agreementshall refer to this Credit Agreement as a whole and not to any particularprovision of this Credit Agreement, and Section, subsection, Schedule andExhibit references are to this Credit Agreement unless otherwise specified.

 

(c)           The meanings given to terms definedherein shall be equally applicable to both the singular and plural forms ofsuch terms.

 

## **Section 1.3            AccountingTerms.**

## ** **

Unless otherwisespecified herein, all accounting terms used herein shall be interpreted, allaccounting determinations hereunder shall be made, and all financial statementsrequired to be delivered hereunder shall be prepared in accordance with GAAPapplied on a basis consistent with the most recent audited consolidatedfinancial statements of the Company delivered to the Lenders; providedthat, if the Company shall notify the Administrative Agent that it wishes toamend any covenant in Section 6.6 to eliminate the effect of any change inGAAP on the operation of such covenant (or if the Administrative Agent notifiesthe Company that the Required Lenders wish to amend Section 6.6 for suchpurpose), then the Company’s compliance with such covenant shall be determinedon the basis of GAAP in effect immediately before the relevant change in GAAPbecame effective, until either such notice is withdrawn or such covenant isamended in a manner satisfactory to the Company and the Required Lenders.

 

Notwithstanding theabove, the parties hereto acknowledge and agree that, for purposes of all calculationsmade in determining compliance for any applicable period with the financialcovenants set forth in Section 6.6, (i) beginning after consummationof any acquisition, (A) income statement items and other balance sheetitems (whether positive or negative) attributable to the target acquired insuch transaction shall be included in such calculations to the extent relatingto such applicable period, subject to adjustments mutually acceptable to theCompany and the Administrative Agent, and (B) Indebtedness of a targetwhich is retired in connection with a acquisition shall be excluded from suchcalculations and deemed to have been retired as of the first day of suchapplicable period and (ii) beginning after consummation of any

 

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“Sale” permitted bySection 6.3(b), (A) income statement items and other balance sheet items(whether positive or negative) attributable to the assets disposed of shall beexcluded in such calculations to the extent relating to such applicable period,subject to adjustments mutually acceptable to the Company and theAdministrative Agent and (B) Indebtedness of the target of an acquisitionwhich is retired in connection with a Sale permitted by Section 6.3(b) shall beexcluded from such calculations and deemed to have been retired as of the firstday of such applicable period.

 

## **Section 1.4            Exchange Rates; CurrencyEquivalents.**

## ** **

(a)           TheAdministrative Agent shall determine the Spot Rates as of each Revaluation Dateto be used for calculating the Dollar Amounts of Extensions of Credit andamounts outstanding hereunder denominated in Foreign Currencies.  Such Spot Rates shall become effective as ofsuch Revaluation Date and shall be the Spot Rates employed in converting anyamounts between the applicable currencies until the next Revaluation Date tooccur.  Except for purposes of financialstatements delivered by the Company hereunder or calculating financialcovenants hereunder or except as otherwise provided herein, the applicable amountof any currency for purposes of the Credit Documents shall be such DollarAmount as so determined by the Administrative Agent.

 

(b)           Whereverin this Credit Agreement in connection with an Extension of Credit, conversion,continuation or prepayment of a Loan, an amount, such as a required minimum ormultiple amount, is expressed in Dollars, but such Extension of Credit or Loanis denominated in a Foreign Currency, such amount shall be the relevant ForeignCurrency Equivalent of such Dollar Amount (rounded to the nearest1,000 units of such Foreign Currency), as determined by the AdministrativeAgent.

 

## **Section 1.5            Redenomination of Certain ForeignCurrencies and Computation of Dollar Amounts.**

 

(a)           Eachobligation of the Borrowers to make a payment denominated in the NationalCurrency Unit of any member state of the European Union that adopts the Euro asits lawful currency after the date hereof shall be redenominated into Euro atthe time of such adoption (in accordance with the EMU Legislation).  If, in relation to the currency of any suchmember state, the basis of accrual of interest expressed in this CreditAgreement in respect of that currency shall be inconsistent with any conventionor practice in the London interbank market for the basis of accrual of interestin respect of the Euro, such expressed basis shall be replaced by suchconvention or practice with effect from the date on which such member stateadopts the Euro as its lawful currency; provided that if any Extensionof Credit in the currency of such member state is outstanding immediately priorto such date, such replacement shall take effect, with respect to suchExtension of Credit, at the end of the then current Interest Period.

 

(b)           Eachprovision of this Credit Agreement shall be subject to such reasonable changesof construction as the Administrative Agent may from time to time specify to beappropriate to reflect the adoption of the Euro by any member state of theEuropean Union and any relevant market conventions or practices relating to theEuro.

 

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(c)           Referencesherein to minimum Dollar Amounts and integral multiples stated in Dollars,where they shall also be applicable to Foreign Currency, shall be deemed torefer to approximate Foreign Currency Equivalents.

 

## **Section1.6            Additional ForeignCurrencies.**

## ** **

The Company may from time to time request thatRevolving Loans that are LIBOR Rate Loans be made in a currency other thanthose specifically listed in the definition of “Foreign Currency”; providedthat such requested currency otherwise meets the requirements set forth in suchdefinition.  Any such request shall bemade to the Administrative Agent (which shall promptly notify each Lenderthereof) not later than 11:00 a.m., ten (10) Business Days prior tothe date of the desired borrowing in such currency.  Each Lender shall notify the Administrative Agent, not later than11:00 a.m., seven (7) Business Days after receipt of such request whetherit consents, in its sole discretion, to making LIBOR Rate Loans in suchrequested currency.  Any failure by aLender to respond to such request within the time period specified in thepreceding sentence shall be deemed to be a refusal by such Lender to make LIBORRate Loans in such requested currency. If all the Lenders consent to making LIBOR Rate Loans in such requestedcurrency, the Administrative Agent shall so notify the Company and suchcurrency shall thereupon be deemed for all purposes to be a Foreign Currencyhereunder.

 

# **ARTICLEIITHE LOANS; AMOUNT AND TERMS**

# ** **

## **Section 2.1            RevolvingLoans.**

## ** **

(a)           Revolving Commitment.  During the Commitment Period, subject to theterms and conditions hereof, each Lender severally agrees to make revolvingcredit loans (i) in Dollars and in Foreign Currencies to the Company,(ii) in Swiss Francs to the Swiss Borrower, and (iii) in Japanese Yento the Japanese Borrower from time to time in an aggregate principal DollarAmount of up to **TWO HUNDRED SEVENTY MILLION DOLLARS ($270,000,000)** (assuch aggregate maximum amount may be reduced from time to time as provided inSection 2.5, the “Aggregate Revolving Committed Amount”) for thepurposes hereinafter set forth; provided, however, that(i) the aggregate principal Dollar Amount of revolving credit loans madeto the Swiss Borrower in Swiss Francs shall not exceed $100,000,000,(ii) the aggregate principal Dollar Amount of revolving credit loans madeto the Japanese Borrower in Japanese Yen shall not exceed $100,000,000;(iii) the aggregate principal Dollar Amount of revolving credit loans madeto the Company in all Foreign Currencies shall not exceed $200,000,000,(iv) the aggregate Dollar Amount of revolving credit loans made to all ofthe Borrowers in all Foreign Currencies shall not at any time exceed $200,000,000,(v) with regard to each Lender individually, the aggregate principalDollar Amount (determined as of the most recent Determination Date) of suchLender’s Revolving Commitment Percentage of outstanding Revolving Loans(including, without limitation, Fronted Foreign Currency Loans) plussuch Lender’s Revolving Commitment Percentage of outstanding Swingline Loans plussuch Lender’s

 

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LOC Commitment Percentageof LOC Obligations shall not exceed such Lender’s Revolving Committed Amount,and (vi) with regard to the Lenders collectively, the aggregate principalDollar Amount (determined as of the most recent Determination Date) of theoutstanding Revolving Loans plus outstanding Swingline Loans plusLOC Obligations shall not exceed the Aggregate Revolving Committed Amount.  Revolving Loans may consist of Base RateLoans or LIBOR Rate Loans, or a combination thereof, as the applicable Borrowermay request, and may be repaid and reborrowed in accordance with the provisionshereof; provided, however, (A) Revolving Loans denominatedin Foreign Currencies shall consist solely of LIBOR Rate Loans and(B) Revolving Loans made on the Closing Date or on any of the threeBusiness Days following the Closing Date may only consist of Alternate BaseRate Loans unless the applicable Borrower executes a funding indemnity letterin form and substance satisfactory to the Administrative Agent.  LIBOR Rate Loans shall be made by eachLender at its LIBOR Lending Office and Alternate Base Rate Loans at itsDomestic Lending Office.

 

(b)           Revolving Loan Borrowings.

 

(i)            Notice of Borrowing.  Any Borrower may request a Revolving Loanborrowing by written notice (or telephone notice promptly confirmed in writingwhich confirmation may be by fax) to the Administrative Agent not later than12:00 Noon (Charlotte, North Carolina time) on the Business Day priorto the date of requested borrowing in the case of Alternate Base Rate Loansdenominated in Dollars, on the third Business Day prior to the date of therequested borrowing in the case of LIBOR Rate Loans denominated in Dollars, andon the fourth Business Day prior to the date of the requested borrowing in thecase of all LIBOR Rate Loans denominated in Foreign Currencies.  Each such request for borrowing shall beirrevocable and shall specify (A) the applicable Borrower, (B) that aRevolving Loan is requested, (C) the date of the requested borrowing(which shall be a Business Day), (D) the currency and the aggregateprincipal amount to be borrowed, (E) whether the borrowing shall becomprised of Alternate Base Rate Loans, LIBOR Rate Loans or a combinationthereof, and if LIBOR Rate Loans are requested, the Interest Period(s) andcurrency therefor.  A form of Notice ofBorrowing (a “Notice of Borrowing”) is attached as Schedule 2.1(b)(i).  If the applicable Borrower shall fail tospecify in any such Notice of Borrowing (I) an applicable Interest Periodin the case of a LIBOR Rate Loan, then such notice shall be deemed to be arequest for an Interest Period of one month, (II) the type of RevolvingLoan requested, then such notice shall be deemed to be a request for anAlternate Base Rate Loan hereunder (unless such notice indicates that therequested borrowing is to be made in a Foreign Currency, in which case, suchnotice shall be deemed to be a request for a LIBOR Rate Loan hereunder), or(III) the currency of the Revolving Loan requested, (x) if suchrequest is made by the Company, then such notice shall be deemed to be arequest for a Revolving Loan denominated in Dollars, (y) if such requestis made by the Swiss Borrower, then such notice shall be deemed to be a requestfor a Revolving Loan denominated in Swiss Francs and (z) if such requestis made by the Japanese Borrower, then such notice shall be deemed to be arequest for a Revolving Loan denominated in Japanese Yen.  The Administrative Agent shall give noticeto each Lender promptly upon receipt of each Notice of Borrowing, the contentsthereof and each such Lender’s share thereof.

 

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(ii)           Minimum Amounts.  Each Revolving Loan which is an AlternateBase Rate Loan shall be in a minimum aggregate Dollar Amount of $1,000,000 andin integral multiples of $500,000 in excess thereof (or the remaining amount ofthe Aggregate Revolving Committed Amount, if less).  Each Revolving Loan which is a LIBOR Rate Loan shall be in aminimum aggregate Dollar Amount of $1,000,000 and in integral multiples of$500,000 in excess thereof.

 

(iii)          Advances.  Each Lender (or in the case of any ForeignCurrency Participant, the Foreign Currency Fronting Bank, on such ForeignCurrency Participant’s behalf as set forth below) will make its RevolvingCommitment Percentage of each Revolving Loan borrowing available to the AdministrativeAgent, for the account of the applicable Borrower, in Dollars or the applicableForeign Currency and in funds immediately available to the AdministrativeAgent, at the Administrative Agent’s Office by (A) 12:00 Noon on the date specified in the applicable Notice ofBorrowing in the case of any Revolving Loan denominated in Dollars and (B) theApplicable Time specified by the Administrative Agent in the case of anyRevolving Loan denominated in a Foreign Currency.  With respect to any Foreign Currency Participant, the ForeignCurrency Fronting Bank will make such Foreign Currency Participant’s RevolvingCommitment Percentage of each applicable Foreign Currency Loan on behalf ofsuch Foreign Currency Participant for the account of the applicable Borrower,in the applicable Foreign Currency (each such Foreign Currency  Loan a “Fronted Foreign Currency Loan”).  Such borrowing will then be made availableto the applicable Borrower by the Administrative Agent by crediting the accountof the applicable Borrower on the books of the Administrative Agent’s Officewith the aggregate of the amounts made available to the Administrative Agent bythe Lenders and in like funds as received by the Administrative Agent.

 

(c)           Repayment.  The principal amount of all Revolving Loansshall be due and payable in full on the Maturity Date, unless acceleratedsooner pursuant to Section 7.2.

 

(d)           Interest.  Subject to the provisions ofSection 2.8, Revolving Loans shall bear interest as follows:

 

(i)            Alternate Base Rate Loans.  During such periods as Revolving Loans shallbe comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loanshall bear interest at a per annum rate equal to the sum of the Alternate BaseRate plus the Applicable Percentage; and

 

(ii)           LIBOR Rate Loans.  During such periods as Revolving Loans shallbe comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interestat a per annum rate equal to the sum of the LIBOR Rate plus theApplicable Percentage.

 

Interest on RevolvingLoans shall be payable in arrears on each Interest Payment Date.

 

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(e)           Revolving Notes.  Each Lender’s Revolving Committed Amountshall be evidenced by a duly executed promissory note of each of the Borrowersto such Lender in substantially the form of Schedule 2.1(e).

 

(f)            Participationsof Foreign Currency Loans.  At thetime that the Foreign Currency Fronting Bank makes a Fronted Foreign CurrencyLoan, each Foreign Currency Participant shall be deemed, without any furtheraction by any Person, to have purchased from the Foreign Currency Fronting Bankan unfunded participation, without recourse to or warranty of the ForeignCurrency Fronting Bank, in such Fronted Foreign Currency Loan in an amountequal to such Foreign Currency Participant’s Revolving Commitment Percentage ofsuch Loan and shall be obligated to fund such participation at the time and inthe manner provided below.  In the eventthat the applicable Borrower shall fail to timely repay any Foreign CurrencyLoan, and in any event upon (i) the request of the Foreign Currency FrontingBank and (ii) the occurrence and during the continuance of a Default or anEvent of Default, each Foreign Currency Participant shall fund itsparticipation in such Loan (regardless of whether the conditions precedentthereto set forth in Section 4.2 are then satisfied, whether or not the Companyor a Foreign Borrower has then submitted a Notice of Borrowing and whether ornot the Commitments are then in effect, any Event of Default exists or all theLoans have been accelerated) by paying to the Foreign Currency Fronting Bank,at the address provided in Section 9.2 or at such other address as the ForeignCurrency Fronting Bank may designate, the Dollar Amount (as determined as ofthe date such participation is to be funded) its participation of suchRevolving Loan.  Upon the funding of itsRevolving Commitment Percentage of such Foreign Currency Loan, a ForeignCurrency Participant shall have a Revolving Loan denoted in Dollars equal tothe U.S. Dollar amount funded.  If suchamount is not in fact made available to the Foreign Currency Fronting Bank byany Foreign Currency Participant, the Foreign Currency Fronting Bank shall beentitled to recover such amount on demand from such Foreign CurrencyParticipant, together with accrued interest thereon for each day from the dateof demand thereof, at the Federal Funds Rate if paid within two Business Daysof the date of demand thereof, and thereafter at a rate equal to the Base Rate.  If such Foreign Currency Participant doesnot pay such amount forthwith upon the Foreign Currency Fronting Bank’s demandtherefor, and until such time as such Foreign Currency Participant makes therequired payment, the Foreign Currency Fronting Bank shall be deemed tocontinue to have outstanding Foreign Currency Loans in the amount of suchunpaid participation obligation for all purposes of the Credit Documents otherthan those provisions requiring the Foreign Currency Participants to purchase aparticipation therein.  From the date onwhich the Foreign Currency Fronting Bank makes any Fronted Foreign CurrencyLoan on behalf of any Foreign Currency Participant until the date on which suchForeign Currency Participant funds its Revolving Commitment Percentage of anysuch Foreign Currency Loans to the Foreign Currency Fronting Bank in the mannerset forth above, the interest payable on such Foreign Currency Loan as setforth in Section 2.1(d) shall be allocated among the Foreign Currency FrontingBank and each Foreign Currency Participant such that each Foreign CurrencyParticipant shall receive the Applicable Percentage on such Foreign CurrencyLoan and the Foreign Currency Fronting Bank shall receive the remainder of theinterest paid by the Company pursuant to Section 2.1(d).

 

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## **Section 2.2            Letter of Credit Subfacility.**

 

(a)           Issuance.  Subject to the terms and conditions hereofand of the LOC Documents, if any, and any other terms and conditions which the IssuingLender may reasonably require, during the Commitment Period the Issuing Lendershall issue, and the Lenders shall participate in, Letters of Credit for theaccount of the Company and its Subsidiaries****from time to time upon request in a formacceptable to the Issuing Lender; provided, however, that(i) the aggregate amount of LOC Obligations shall not at any time exceed **TEN MILLIONDOLLARS** **($10,000,000)** (the “LOC Committed Amount”),(ii) with regard to the Lenders collectively, the aggregate principalDollar Amount (determined as of the most recent Determination Date) of theoutstanding Revolving Loans plus outstanding Swingline Loans plusLOC Obligations shall not exceed the Aggregate Revolving Committed Amount,(iii) all Letters of Credit shall be denominated in U.S. Dollars and(iv) Letters of Credit shall be issued for lawful corporate purposes andmay be issued as standby letters of credit, including in connection withworkers’ compensation and other insurance programs, and trade letters of credit.  Except as otherwise expressly agreed upon byall the Lenders, no Letter of Credit shall have an original expiry date morethan twelve (12) months from the date of issuance; provided, however,so long as no Default or Event of Default has occurred and is continuing andsubject to the other terms and conditions to the issuance of Letters of Credithereunder, the expiry dates of Letters of Credit may be extended annually orperiodically from time to time at the request of the Company or by operation ofthe terms of the applicable Letter of Credit to a date not more than twelve(12) months from the date of extension; provided, further, thatno Letter of Credit, as originally issued or as extended, shall have an expirydate extending beyond the date that is thirty (30) days prior to the MaturityDate.  Each Letter of Credit shallcomply with the related LOC Documents. The issuance and expiry date of each Letter of Credit shall be aBusiness Day.  Any Letters of Creditissued hereunder shall be in a minimum original face amount of $100,000 or suchlesser amount as may be agreed upon between the Company and the IssuingLender.  Wachovia shall be the IssuingLender on all Letters of Credit issued after the Closing Date.

 

(b)           Notice and Reports.  The request for the issuance of a Letter ofCredit shall be submitted to the Issuing Lender at least five (5) BusinessDays prior to the requested date of issuance. The Issuing Lender will promptly upon request provide to the AdministrativeAgent for dissemination to the Lenders a detailed report specifying the Lettersof Credit which are then issued and outstanding and any activity with respectthereto which may have occurred since the date of any prior report, andincluding therein, among other things, the account party, the beneficiary, theface amount, expiry date as well as any payments or expirations which may haveoccurred.  The Issuing Lender willfurther provide to the Administrative Agent promptly upon request copies of theLetters of Credit.  The Issuing Lenderwill provide to the Administrative Agent promptly upon request a summary reportof the nature and extent of LOC Obligations then outstanding.

 

(c)           Participations.  Each Lender, upon issuance of a Letter ofCredit, shall be deemed to have purchased without recourse a risk participationfrom the Issuing Lender in such Letter of Credit and the obligations arisingthereunder and any collateral****relating thereto, in each case in anamount equal to its LOC Commitment Percentage of the obligations under suchLetter of Credit and shall absolutely, unconditionally and irrevocably assume,as primary obligor and not

 

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as surety, and beobligated to pay to the Issuing Lender therefor and discharge when due, its LOCCommitment Percentage of the obligations arising under such Letter ofCredit.  Without limiting the scope andnature of each Lender’s participation in any Letter of Credit, to the extentthat the Issuing Lender has not been reimbursed as required hereunder or underany LOC Document, each such Lender shall pay to the Issuing Lender its LOCCommitment Percentage of such unreimbursed drawing in same day funds on the dayof notification by the Issuing Lender of an unreimbursed drawing pursuant toand in accordance with the provisions of subsection (d) hereof.  The obligation of each Lender to soreimburse the Issuing Lender shall be absolute and unconditional and shall notbe affected by the occurrence of a Default, an Event of Default or any otheroccurrence or event.  Any suchreimbursement shall not relieve or otherwise impair the obligation of theBorrowers to reimburse the Issuing Lender under any Letter of Credit, togetherwith interest as hereinafter provided.

 

(d)           Reimbursement.  In the event of any drawing under any Letterof Credit, the Issuing Lender will promptly notify the Company and theAdministrative Agent.  The Company shallreimburse the Issuing Lender on the day of drawing under any Letter of Credit(with the proceeds of a Revolving Loan obtained hereunder or otherwise) in sameday funds as provided herein or in the LOC Documents.  If the Company shall fail to reimburse the Issuing Lender asprovided herein, the unreimbursed amount of such drawing shall bear interest ata per annum rate equal to the Alternate Base Rate plus the ApplicablePercentage for Revolving Loans that are Base Rate Loans plus twopercent (2%) for so long as such amount shall be unreimbursed.  Unless the Company shall immediately notifythe Issuing Lender and the Administrative Agent of its intent to otherwisereimburse the Issuing Lender, the Company shall be deemed to have requested aRevolving Loan (a “Mandatory Borrowing”) in the amount of the drawing asprovided in subsection (e) hereof, the proceeds of which will be used tosatisfy the reimbursement obligations. The Company’s reimbursement obligations hereunder shall be absolute andunconditional under all circumstances irrespective of any rights of set-off,counterclaim or defense to payment the Company may claim or have against theIssuing Lender, the Administrative Agent, the Lenders, the beneficiary of theLetter of Credit drawn upon or any other Person, including without limitationany defense based on any failure of the Company to receive consideration or thelegality, validity, regularity or unenforceability of the Letter ofCredit.  The Issuing Lender willpromptly notify the other Lenders of the amount of any unreimbursed drawing andeach Lender shall promptly pay to the Administrative Agent for the account ofthe Issuing Lender in Dollars and in immediately available funds, the amount ofsuch Lender’s LOC Commitment Percentage of such unreimbursed drawing.  Such payment shall be made on the day suchnotice is received by such Lender from the Issuing Lender if such notice isreceived at or before 2:00 p.m. (Charlotte, North Carolina time),otherwise such payment shall be made at or before 12:00 Noon (Charlotte,North Carolina time) on the Business Day next succeeding the day suchnotice is received.  If such Lender doesnot pay such amount to the Issuing Lender in full upon such request, suchLender shall, on demand, pay to the Administrative Agent for the account of theIssuing Lender interest on the unpaid amount during the period from the date ofsuch drawing until such Lender pays such amount to the Issuing Lender in fullat a rate per annum equal to, if paid within two (2) Business Days of thedate of drawing, the Federal Funds Effective Rate and thereafter at a rateequal to the Alternate Base Rate.  EachLender’s obligation to make such payment to the Issuing Lender, and the rightof the Issuing Lender to receive the same, shall be absolute and unconditional,shall not be affected by

 

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any circumstancewhatsoever and without regard to the termination of this Credit Agreement orthe Commitments hereunder, the existence of a Default or Event of Default orthe acceleration of the Borrower Obligations hereunder and shall be madewithout any offset, abatement, withholding or reduction whatsoever.

 

(e)           Repayment with Revolving Loans.  On any day on which the Company shall haverequested, or been deemed to have requested, a Revolving Loan to reimburse adrawing under a Letter of Credit, the Administrative Agent shall give notice tothe Lenders that a Revolving Loan has been requested or deemed requested inconnection with a drawing under a Letter of Credit, in which case a RevolvingLoan borrowing comprised entirely of Alternate Base Rate Loans (each suchborrowing, a “Mandatory Borrowing”) shall be immediately made (withoutgiving effect to any termination of the Commitments pursuant toSection 7.2) prorata based on each Lender’s respectiveRevolving Commitment Percentage (determined before giving effect to anytermination of the Commitments pursuant to Section 7.2).  The proceeds of such Mandatory Borrowingshall be paid directly to the Issuing Lender for application to the respectiveLOC Obligations.  Each Lender herebyirrevocably agrees to make such Revolving Loans immediately upon any suchrequest or deemed request on account of each Mandatory Borrowing in the amountand in the manner specified in the preceding sentence and on the same such datenotwithstanding (i) the amount of Mandatory Borrowing may notcomply with the minimum amount for borrowings of Revolving Loans otherwiserequired hereunder, (ii) whether any conditions specified inSection 4.2 are then satisfied, (iii) whether a Default or an Eventof Default then exists, (iv) failure for any such request or deemed requestfor Revolving Loan to be made by the time otherwise required inSection 2.1(b),****(v)** **the date of such Mandatory Borrowing,or (vi) any reduction in the Aggregate Revolving Committed Amount afterany such Letter of Credit may have been drawn upon; provided, however,that in the event any such Mandatory Borrowing should be less than the minimumamount for borrowings of Revolving Loans otherwise provided inSection 2.1(b)(ii), the Company shall pay to the Administrative Agent forits own account an administrative fee of $500. In the event that any Mandatory Borrowing cannot for any reason be madeon the date otherwise required above (including, without limitation, as aresult of the commencement of a proceeding under the Bankruptcy Code), theneach such Lender hereby agrees that it shall forthwith fund (as of the date theMandatory Borrowing would otherwise have occurred, but adjusted for anypayments received from the Company on or after such date and prior to suchpurchase) its Participation Interests in the outstanding LOC Obligations; provided,further, that in the event any Lender shall fail to fund itsParticipation Interest on the day the Mandatory Borrowing would otherwise haveoccurred, then the amount of such Lender’s unfunded Participation Interesttherein shall bear interest payable by such Lender to the Issuing Lender upondemand, at the rate equal to, if paid within two (2) Business Days of suchdate, the Federal Funds Effective Rate, and thereafter at a rate equal to theAlternate Base Rate.

 

(f)            Modification, Extension.  The issuance of any supplement,modification, amendment, renewal, or extension to any Letter of Credit shall,for purposes hereof, be treated in all respects the same as the issuance of anew Letter of Credit hereunder.

 

(g)           Uniform Customs and Practices.  The Issuing Lender shall have the Letters ofCredit be subject to The Uniform Customs and Practice for Documentary Credits,as published

 

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as of the date of issueby the International Chamber of Commerce (the “UCP”), in which case theUCP may be incorporated therein and deemed in all respects to be a partthereof.

 

## **Section 2.3            Swingline Loan Subfacility.**

## ** **

(a)           SwinglineCommitment.  During the CommitmentPeriod, subject to the terms and conditions hereof, the Swingline Lender, inits individual capacity, agrees to make certain revolving credit loans inDollars to the Company (each a “Swingline Loan” and, collectively, the “SwinglineLoans”) for the purposes hereinafter set forth; provided, however,(i) the aggregate amount of Swingline Loans outstanding at any time shallnot exceed **TWENTY-FIVE MILLION DOLLARS ($25,000,000)** (the “SwinglineCommitted Amount”), and (ii) with regard to the Lenders collectively,the aggregate principal Dollar Amount (determined as of the most recentDetermination Date) of the outstanding Revolving Loans plus outstandingSwingline Loans plus LOC Obligations shall not exceed the AggregateRevolving Committed Amount.  SwinglineLoans hereunder may be repaid and reborrowed in accordance with the provisionshereof.

 

(b)           SwinglineLoan Borrowings.

 

(i)            Notice of Borrowing andDisbursement.  The Swingline Lenderwill make Swingline Loans available to the Company on any Business Day uponrequest made by the Company not later than 12:00 Noon (Charlotte,North Carolina time) on such Business Day.  A notice of request for Swingline Loan borrowing shall be made inthe form of Schedule 2.1(b)(i) with appropriate modifications.  Swingline Loan borrowings hereunder shall bemade in minimum amounts of $100,000 and in integral amounts of $100,000 inexcess thereof.

 

(ii)           Repayment of Swingline Loans.  Each Swingline Loan borrowing shall be dueand payable on the Maturity Date.  TheSwingline Lender may, at any time, in its sole discretion, by written notice tothe Company and the Administrative Agent, demand repayment of its SwinglineLoans by way of a Revolving Loan borrowing, in which case the Company shall bedeemed to have requested a Revolving Loan borrowing comprised entirely ofAlternate Base Rate Loans in the amount of such Swingline Loans; provided,however, that, in the following circumstances, any such demand shallalso be deemed to have been given one Business Day prior to each of(i) the Maturity Date, (ii) the occurrence of any Event of Defaultdescribed in Section 7.1(e), (iii) upon acceleration of the BorrowerObligations hereunder, whether on account of an Event of Default described inSection 7.1(e) or any other Event of Default, and (iv) the exerciseof remedies in accordance with the provisions of Section 7.2 hereof (eachsuch Revolving Loan borrowing made on account of any such deemed requesttherefor as provided herein being hereinafter referred to as “MandatoryBorrowing”).  Each Lender herebyirrevocably agrees to make such Revolving Loans promptly upon any such requestor deemed request on account of each Mandatory Borrowing in the amount and inthe manner specified in the preceding sentence and on the same such date notwithstanding(I) the amount of Mandatory Borrowing may not comply with the minimumamount for borrowings of Revolving Loans otherwise required hereunder,(II) whether any

 

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conditions specified in Section 4.2 are thensatisfied, (III) whether a Default or an Event of Default then exists,(IV) failure of any such request or deemed request for Revolving Loans tobe made by the time otherwise required in Section 2.1(b)(i), (V) thedate of such Mandatory Borrowing, or (VI) any reduction in the RevolvingCommitted Amount or termination of the Revolving Commitments immediately priorto such Mandatory Borrowing or contemporaneously therewith.  In the event that any Mandatory Borrowingcannot for any reason be made on the date otherwise required above (including,without limitation, as a result of the commencement of a proceeding under theBankruptcy Code), then each Lender hereby agrees that it shall forthwithpurchase (as of the date the Mandatory Borrowing would otherwise have occurred,but adjusted for any payments received from the Company on or after such dateand prior to such purchase) from the Swingline Lender such participations inthe outstanding Swingline Loans as shall be necessary to cause each such Lenderto share in such Swingline Loans ratably based upon its respective RevolvingCommitment Percentage (determined before giving effect to any termination ofthe Commitments pursuant to Section 7.2) provided that (A) allinterest payable on the Swingline Loans shall be for the account of theSwingline Lender until the date as of which the respective participation ispurchased, and (B) at the time any purchase of participations pursuant tothis sentence is actually made, the purchasing Lender shall be required to payto the Swingline Lender interest on the principal amount of such participationpurchased for each day from and including the day upon which the MandatoryBorrowing would otherwise have occurred to but excluding the date of paymentfor such participation, at the rate equal to, if paid within two (2)Business Days of the date of the Mandatory Borrowing, the Federal FundsEffective Rate, and thereafter at a rate equal to the Alternate Base Rate.

 

(c)           Intereston Swingline Loans.  Subject to theprovisions of Section 2.8, Swingline Loans shall bear interest at a perannum rate equal to the Alternate Base Rate plus the ApplicablePercentage for Revolving Loans that are Alternate Base Rate Loans.  Interest on Swingline Loans shall be payablein arrears on each Interest Payment Date.

 

(d)           Swingline Note.  The Swingline Loans shall be evidenced by aduly executed promissory note of the Company to the Swingline Lender in theoriginal amount of the Swingline Committed Amount and substantially in the formof Schedule 2.3(d).

 

## **Section 2.4            Fees.**

## ** **

(a)           Commitment Fee.  In consideration of the RevolvingCommitment, the Company agrees to pay to the Administrative Agent for theratable benefit of the Lenders a commitment fee (the “Commitment Fee”)in an amount equal to the Applicable Percentage per annum on the average dailyunused amount of the Aggregate Revolving Committed Amount.  For purposes of computation of theCommitment Fee, LOC Obligations shall be considered usage of the AggregateRevolving Committed Amount but Swingline Loans shall not be considered usage ofthe Aggregate Revolving Committed Amount. The Commitment Fee shall be payable quarterly on the last Business Dayof each calendar quarter.

 

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(b)           Letter of Credit Fees.  In consideration of the LOC Commitments, theCompany agrees to pay to the Issuing Lender a fee (the “Letter of Credit Fee”)equal to the Applicable Percentage per annum on the average daily maximumamount available to be drawn under each such Letter of Credit from the date ofissuance to the date of expiration.  Inaddition to such Letter of Credit Fee, the Issuing Lender may charge, andretain for its own account without sharing by the other Lenders, an additionalfacing fee (the “Letter of Credit Facing Fee”) of one-eighth of onepercent (.125%) per annum on the average daily maximum amount available tobe drawn under each such Letter of Credit issued by it.  The Issuing Lender shall promptly pay overto the Administrative Agent for the ratable benefit of the Lenders (includingthe Issuing Lender) the Letter of Credit Fee. The Letter of Credit Fee shall be payable quarterly in arrears on thelast Business Day of each calendar quarter.

 

(c)           Issuing Lender Fees.  In addition to the Letter of Credit Feespayable pursuant to subsection (b) hereof, the Company shall pay to theIssuing Lender for its own account without sharing by the other Lenders thereasonable and customary charges from time to time of the Issuing Lender withrespect to the amendment, transfer, administration, cancellation and conversionof, and drawings under, such Letters of Credit (collectively, the “IssuingLender Fees”).

 

(d)           Administrative Fee.  The Company agrees to pay to theAdministrative Agent the annual administrative fee as described in the FeeLetter.

 

## **Section 2.5            CommitmentReductions.**

## ** **

(a)           Voluntary Reductions.  The Borrowers shall have the right toterminate or permanently reduce the unused portion of the Aggregate RevolvingCommitted Amount at any time or from time to time upon not less than fiveBusiness Days’ prior notice to the Administrative Agent (which shall notify theLenders thereof as soon as practicable) of each such termination or reduction,which notice shall specify the effective date thereof and the amount of anysuch reduction which shall be in a minimum Dollar Amount of $5,000,000 or awhole multiple of $1,000,000 in excess thereof and shall be irrevocable andeffective upon receipt by the Administrative Agent, provided that nosuch reduction or termination shall be permitted if after giving effectthereto, and to any prepayments of the Loans made on the effective datethereof, the sum of the outstanding Revolving Loans plus outstandingSwingline Loans plus LOC Obligations would exceed the AggregateRevolving Committed Amount.

 

(b)           Maturity Date.  The Revolving Commitment, the SwinglineCommitment and the LOC Commitment shall automatically terminate on the MaturityDate.

 

## **Section 2.6            Prepayments.**

## ** **

(a)           Optional Prepayments.  The Borrowers shall have the right to prepayLoans in whole or in part from time to time; provided, however,that each partial prepayment of a Revolving Loan shall be in a minimumaggregate principal Dollar Amount of $1,000,000****and integral multiples of$250,000****inexcess thereof, and each partial prepayment of a Swingline Loan shall be in aminimum principal amount of $100,000 and integral multiples of $100,000 in

 

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excess thereof.  The applicable Borrower shall give threeBusiness Days’ irrevocable notice in the case of LIBOR Rate Loans and same-dayirrevocable notice on any Business Day in the case of Alternate Base RateLoans, to the Administrative Agent (which shall notify the Lenders thereof assoon as practicable).  Prepayments shallbe applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans indirect order of Interest Period maturities. All prepayments under this Section 2.6(a) shall be subject toSection 2.18, but otherwise without premium or penalty.  Interest on the principal amount prepaidshall be payable on the next occurring Interest Payment Date that would haveoccurred had such loan not been prepaid or, at the request of theAdministrative Agent, interest on the principal amount prepaid shall be payableon any date that a prepayment is made hereunder through the date ofprepayment.  Amounts prepaid on theRevolving Loans and the Swingline Loans may be reborrowed in accordance withthe terms hereof.

 

(b)           Mandatory Prepayments.  If at any time after the Closing Date, theaggregate principal Dollar Amount (determined as of the most recentDetermination Date) of the outstanding Revolving Loans plus outstandingSwingline Loans plus LOC Obligations shall exceed the AggregateRevolving Committed Amount, the Borrowers immediately shall prepay the Loansand cash collateralize the LOC Obligations in an amount sufficient to eliminatesuch excess.

 

Such prepayment shall beapplied, to the Revolving Loans and then (after all Revolving Loans have beenrepaid) to a cash collateral account in respect of LOC Obligations.  Within the parameters of the applicationsset forth above, prepayments shall be applied first to Alternate Base RateLoans and then to LIBOR Rate Loans in direct order of Interest Period maturities.  All prepayments under this Section 2.6(b)shall be subject to Section 2.18 and be accompanied by interest on theprincipal amount prepaid through the date of prepayment.

 

(c)           Hedging Obligations Unaffected.  Any repayment or prepayment made pursuant tothis Section 2.6 shall not affect the Borrowers’ obligation to continue tomake payments under any Hedging Agreement, which shall remain in full force andeffect notwithstanding such repayment or prepayment, subject to the terms ofsuch Hedging Agreement.

 

## **Section 2.7            Minimum Principal Amount ofTranches.**

## ** **

All borrowings, paymentsand prepayments in respect of Revolving Loans shall be in such amounts and bemade pursuant to such elections so that after giving effect thereto theaggregate principal Dollar Amount (determined as of the most recentDetermination Date) of the Revolving Loans comprising any Tranche shall be(a) with respect to Alternate Base Rate Loans, $1,000,000 or a wholemultiple of $500,000 in excess thereof, and (ii) with respect to LIBORRate Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof.

 

## **Section 2.8            DefaultRate.**

## ** **

Upon the occurrence, andduring the continuance, of an Event of Default, at the discretion of theRequired Lenders, the principal of and, to the extent permitted by law,interest on the Loans and any other amounts owing hereunder or under the otherCredit Documents shall bear interest,

 

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payable on demand, at aper annum rate 2% greater than the rate which would otherwise be applicable (orif no rate is applicable, whether in respect of interest, fees or otheramounts, then the Alternate Base Rate plus the Applicable Percentage plus2%).

 

## **Section 2.9            ConversionOptions.**

## ** **

(a)           The Borrowers may, in the case ofRevolving Loans, elect from time to time to convert Alternate Base Rate Loansto LIBOR Rate Loans, by giving the Administrative Agent at least three BusinessDays’ prior irrevocable written notice of such election.  A form of Notice of Conversion/Extension isattached as Schedule 2.9.  Ifthe date upon which an Alternate Base Rate Loan is to be converted to a LIBORRate Loan is not a Business Day, then such conversion shall be made on the nextsucceeding Business Day and during the period from such last day of an InterestPeriod to such succeeding Business Day such Loan shall bear interest as if itwere an Alternate Base Rate Loan.  Allor any part of outstanding Alternate Base Rate Loans may be converted asprovided herein, provided that (i) no Loan may be converted into aLIBOR Rate Loan when any Default or Event of Default has occurred and iscontinuing and (ii) partial conversions shall be in an aggregate principalDollar Amount of $1,000,000 or a whole multiple of $500,000****in excess thereof.

 

(b)           Any LIBOR Rate Loans may be continuedas such upon the expiration of an Interest Period with respect thereto bycompliance by the applicable Borrower with the notice provisions contained inSection 2.9(a); provided, that no LIBOR Rate Loan may be continuedas such when any Default or Event of Default has occurred and is continuing, inwhich case such Loan shall be automatically converted to an Alternate Base RateLoan at the end of the applicable Interest Period with respect thereto.  If the applicable Borrower shall fail togive timely notice of an election to continue a LIBOR Rate Loan, or thecontinuation of LIBOR Rate Loans is not permitted hereunder, such LIBOR RateLoans shall be automatically converted to Alternate Base Rate Loans at the endof the applicable Interest Period with respect thereto.

 

## **Section 2.10         Computation of Interest and Fees.**

## ** **

(a)           Interest payable hereunder withrespect to Alternate Base Rate Loans shall be calculated on the basis of a yearof 365 days (or 366 days, as applicable) for the actual dayselapsed.  All other fees, interest andall other amounts payable hereunder shall be calculated on the basis of a360 day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify theBorrowers and the Lenders of each determination of a LIBOR Rate on the BusinessDay of the determination thereof.  Anychange in the interest rate on a Loan resulting from a change in the AlternateBase Rate shall become effective as of the opening of business on the day onwhich such change in the Alternate Base Rate shall become effective.  The Administrative Agent shall as soon aspracticable notify the Borrowers and the Lenders of the effective date and theamount of each such change.

 

(b)           Each determination of an interestrate by the Administrative Agent pursuant to any provision of this CreditAgreement shall be conclusive and binding on the Borrowers and the Lenders inthe absence of manifest error.  TheAdministrative Agent shall, at the request of the

 

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Company or any Lender,deliver to the Company or such Lender a statement showing the computations usedby the Administrative Agent in determining any interest rate.

 

## **Section 2.11        **Computations,Pro Rata Treatment and Payments.

## ** **

(a)           Each payment on account of an amountdue from a Borrower hereunder or under any other Credit Document (other thanthe 364-Day Credit Agreement) shall be made by such Borrower to theAdministrative Agent for the pro rata account of the Lendersentitled to receive such payment as provided herein in the currency in whichsuch amount is denominated and in such funds as are customary at the place andtime of payment for the settlement of international payments in suchcurrency.  Without limiting the terms ofthe preceding sentence, accrued interest on any Loans denominated in a ForeignCurrency shall be payable in the same Foreign Currency as such Loan.  Upon request, the Administrative Agent willgive the Borrowers a statement showing the computation used in calculating suchamount, which statement shall be conclusive in the absence of manifesterror.  The obligation of the Borrowersto make each payment on account of such amount in the currency in which suchamount is denominated shall not be discharged or satisfied by any tender, or anyrecovery pursuant to any judgment, which is expressed in or converted into anyother currency, except to the extent such tender or recovery shall result inthe actual receipt by the Administrative Agent of the full amount in theappropriate currency payable hereunder. The Borrowers agree that their obligation to make each payment onaccount of such amount in the currency in which such amount is denominatedshall be enforceable as an additional or alternative claim for recovery in suchcurrency of the amount (if any) by which such actual receipt shall fall shortof the full amount of such currency payable hereunder, and shall not beaffected by judgment being obtained for such amount.

 

(b)           Each borrowing of Revolving Loans andany reduction of the Revolving Commitments shall be made pro rataaccording to the respective Revolving Commitment Percentages of theLenders.  Each payment under this CreditAgreement or any Note shall be applied, first, to any fees then due and owingby the Borrowers pursuant to Section 2.4, second, to interest then due andowing in respect of the Notes of the Borrowers and, third, to principal thendue and owing hereunder and under the Notes of the Borrowers.  Each payment on account of any fees pursuantto Section 2.4 shall be made pro rata in accordancewith the respective amounts due and owing (except as to the Letter of CreditFacing Fee and the Issuing Lender Fees). Each optional prepayment of the Loans shall be applied in accordancewith Section 2.6(a) and each mandatory prepayment of the Loans shall beapplied in accordance with Section 2.6(b). Payments made pursuant to Section 2.14 shall be applied inaccordance with such section.  All payments(including prepayments) to be made by a Borrower on account of principal,interest and fees shall be made without defense, set-off or counterclaim(except as provided in Section 2.19(b)), shall be made to theAdministrative Agent for the account of the Lenders in immediately availablefunds at the Administrative Agent’s Office and (i) in the case of Loans orother amounts denominated in Dollars, shall be made in Dollars not later than12:00 Noon on the date when due and (ii) in the case of Loans orother amounts denominated in a Foreign Currency, shall be made in such ForeignCurrency not later than the Applicable Time specified by the AdministrativeAgent on the date when due.  Any paymentreceived after the foregoing deadlines shall be deemed received on the nextBusiness Day.  The Administrative Agentshall distribute such payments to the Lenders entitled thereto promptly uponreceipt in like funds as received.  Ifany payment hereunder (other than payments on the LIBOR Rate Loans) becomes dueand

 

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payable on a day otherthan a Business Day, such payment shall be extended to the next succeedingBusiness Day, and, with respect to payments of principal, interest thereonshall be payable at the then applicable rate during such extension.  If any payment on a LIBOR Rate Loan becomesdue and payable on a day other than a Business Day, the maturity thereof shallbe extended to the next succeeding Business Day unless the result of suchextension would be to extend such payment into another calendar month, in whichevent such payment shall be made on the immediately preceding Business Day.

 

(c)           Allocation of Payments AfterExercise of Remedies. Notwithstanding any other provisions of this Credit Agreement to thecontrary, after the exercise of remedies by the Administrative Agent or theLenders pursuant to Section 7.2 (or after the Commitments shallautomatically terminate and the Loans (with accrued interest thereon) and allother amounts under the Credit Documents (including without limitation themaximum amount of all contingent liabilities under Letters of Credit) shallautomatically become due and payable in accordance with the terms of suchSection), all amounts collected or received by the Administrative Agent or anyLender on account of the Borrower Obligations or any other amounts outstandingunder any of the Credit Documents shall be paid over or delivered as follows:

 

FIRST, to thepayment of all reasonable out-of-pocket costs and expenses (including withoutlimitation reasonable attorneys’ fees) of the Administrative Agent in connectionwith enforcing the rights of the Lenders under the Credit Documents;

 

SECOND, to thepayment of any fees owed to the Administrative Agent;

 

THIRD, to thepayment of all reasonable out-of-pocket costs and expenses (including withoutlimitation, reasonable attorneys’ fees) of each of the Lenders in connectionwith enforcing its rights under the Credit Documents or otherwise with respectto the Borrower Obligations owing to such Lender;

 

FOURTH, to thepayment of all of the Borrower Obligations consisting of accrued fees andinterest, and including with respect to anyHedging Agreement between any Borrower and any Hedging Agreement Provider, anyfees, premiums and scheduled periodic payments due under such Hedging Agreementand any interest accrued thereon;

 

FIFTH, to the payment of the outstanding principalamount of the Borrower Obligations and the payment or cash collateralization ofthe outstanding LOC Obligations, and including with respect to any HedgingAgreement between any Borrower and any Hedging Agreement Provider, to theextent such Hedging Agreement is permitted hereunder, any breakage, terminationor other payments due under such Hedging Agreement and any interest accruedthereon;

 

SIXTH, to allother Borrower Obligations and other obligations which shall have become dueand payable under the Credit Documents or otherwise and not repaid pursuant toclauses ”FIRST” through “FIFTH” above; and

 

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SEVENTH, to thepayment of the surplus, if any, to whoever may be lawfully entitled to receivesuch surplus.

 

In carrying out theforegoing, (i) amounts received shall be applied in the numerical orderprovided until exhausted prior to application to the next succeeding category;(ii) each of the Lenders shall receive an amount equal to its pro ratashare (based on the proportion that the then outstanding Loans and LOCObligations held by such Lender bears to the aggregate then outstanding Loansand LOC Obligations) of amounts available to be applied pursuant toclauses ”THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) tothe extent that any amounts available for distribution pursuant toclause ”FIFTH” above are attributable to the issued but undrawn amount ofoutstanding Letters of Credit, such amounts shall be held by the AdministrativeAgent in a cash collateral account and applied (A) first, to reimburse theIssuing Lender from time to time for any drawings under such Letters of Creditand (B) then, following the expiration of all Letters of Credit, to allother obligations of the types described in clauses ”FIFTH” and “SIXTH”above in the manner provided in this Section 2.11(c).

 

## **Section 2.12         Non-Receipt of Funds by theAdministrative Agent.**

## ** **

(a)           Unless the Administrative Agent shallhave been notified in writing by a Lender prior to the date a Loan is to bemade by such Lender (which notice shall be effective upon receipt) that suchLender does not intend to make the proceeds of such Loan available to theAdministrative Agent, the Administrative Agent may assume that such Lender hasmade such proceeds available to the Administrative Agent on such date, and theAdministrative Agent may in reliance upon such assumption (but shall not berequired to) make available to the applicable Borrower a correspondingamount.  If such corresponding amount isnot in fact made available to the Administrative Agent, the AdministrativeAgent shall be able to recover such corresponding amount from such Lender.  If such Lender does not pay suchcorresponding amount forthwith upon the Administrative Agent’s demand therefor,the Administrative Agent will promptly notify the applicable Borrower, and theapplicable Borrower shall immediately pay such corresponding amount to theAdministrative Agent.  TheAdministrative Agent shall also be entitled to recover from the Lender or theapplicable Borrower, as the case may be, interest on such corresponding amountin respect of each day from the date such corresponding amount was madeavailable by the Administrative Agent to the applicable Borrower to the datesuch corresponding amount is recovered by the Administrative Agent at a perannum rate equal to (i) from the applicable Borrower at the applicablerate for the applicable borrowing pursuant to the Notice of Borrowing and (ii) froma Lender at the Federal Funds Effective Rate.

 

(b)           Unless the Administrative Agent shallhave been notified in writing by the applicable Borrower, prior to the date onwhich any payment is due from any Borrower hereunder (which notice shall beeffective upon receipt) that such Borrower does not intend to make suchpayment, the Administrative Agent may assume that such Borrower has made suchpayment when due, and the Administrative Agent may in reliance upon suchassumption (but shall not be required to) make available to each Lender on suchpayment date an amount equal to the portion of such assumed payment to whichsuch Lender is entitled hereunder, and if such Borrower has not in fact madesuch payment to the Administrative Agent, such Lender shall, on

 

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demand, repay to theAdministrative Agent the amount made available to such Lender.  If such amount is repaid to theAdministrative Agent on a date after the date such amount was made available tosuch Lender, such Lender shall pay to the Administrative Agent on demandinterest on such amount in respect of each day from the date such amount wasmade available by the Administrative Agent to such Lender to the date suchamount is recovered by the Administrative Agent at a per annum rate equal tothe Federal Funds Effective Rate.

 

(c)           A certificate of the AdministrativeAgent submitted to any Borrower or any Lender with respect to any amount owingunder this Section 2.12 shall be conclusive in the absence of manifesterror.

 

## **Section 2.13         Inability to Determine Interest Rate.**

## ** **

Notwithstanding any otherprovision of this Credit Agreement, if (i) the Administrative Agent shallreasonably determine (which determination shall be conclusive and bindingabsent manifest error) that, by reason of circumstances affecting the relevantmarket, reasonable and adequate means do not exist for ascertaining LIBOR forsuch Interest Period, or (ii) the Required Lenders shall reasonablydetermine (which determination shall be conclusive and binding absent manifesterror) that the LIBOR Rate does not adequately and fairly reflect the cost tosuch Lenders of funding LIBOR Rate Loans that a Borrower has requested beoutstanding as a LIBOR Tranche during such Interest Period, the AdministrativeAgent shall forthwith give telephone notice of such determination, confirmed inwriting, to such Borrower, and the Lenders at least two Business Days prior tothe first day of such Interest Period. If such notice is given (a) any Foreign Currency Loans requested tobe made on the first day of such Interest Period shall be made, at the soleoption of the applicable Borrower, in Dollars as Alternate Base Rate Loans orsuch request shall be cancelled, (b) any affected LIBOR Rate Loansrequested to be made on the first day of such Interest Period shall be made, atthe sole option of the applicable Borrower, in Dollars as Alternate Base RateLoans and (c) any affected Loans that were to have been converted on thefirst day of such Interest Period to or continued as LIBOR Rate Loans shall beconverted to or continued, at the sole option of the applicable Borrower, inDollars as Alternate Base Rate Loans. Until any such notice has been withdrawn by the Administrative Agent, nofurther Loans shall be made as, continued as, or converted into, LIBOR RateLoans for the Interest Periods so affected.

 

## **Section 2.14         Illegality.**

## ** **

(a)           Notwithstandingany other provision herein, if (i) the adoption of, or any change in, anyRequirement of Law or in the interpretation or application thereof by therelevant Governmental Authority shall make it unlawful for any Lender or itsLIBOR Lending Office to make or maintain LIBOR Rate Loans denominated inDollars or in any Foreign Currency as contemplated by this Credit Agreement, or(ii) there shall have occurred any change in national or internationalfinancial, political or economic conditions (including the imposition of or anychange in exchange controls) or currency exchange rates which would make itunlawful or impossible for any Lender to make Loans denominated in any ForeignCurrency to the applicable Borrower, as contemplated by this Credit Agreement(any such affected LIBOR Rate Loans or Foreign Currency Loans, the “AffectedLoans”), then such Lender, together with Lenders giving

 

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notice underSection 3.8 and 3.10, shall be an “Affected Lender” and bywritten notice to the Borrowers and to the Administrative Agent:

 

(i)            may declare that Affected Loans willnot thereafter (for the duration of such unlawfulness or impossibility) be madeby such Lender hereunder, whereupon any request for an Affected Loan shall, asto such Lender only (A) if such Affected Loan is not a Foreign Currency Loan,be deemed a request for a Alternate Base Rate Loan (unless it should also beillegal for the Affected Lender to provide a Base Rate Loan, in which case suchLoan shall bear interest at a commensurate rate to be agreed upon by theAdministrative Agent and the Affected Lender, and so long as no Event ofDefault shall have occurred and be continuing, the Borrowers), unless suchdeclaration shall be subsequently withdrawn and (B) if such Affected Loan is aForeign Currency Loan, be deemed to have been withdrawn, unless suchdeclaration shall be subsequently withdrawn; and

 

(ii)           may require that all outstandingAffected Loans, as the case may be, made by it be (A) if such AffectedLoans are not Foreign Currency Loans, converted to Alternate Base Rate Loans,in which event all such Affected Loans shall be automatically converted toAlternate Base Rate Loans as of the effective date of such notice as providedin paragraph (b) below or (B) if such Affected Loans are ForeignCurrency Loans, repaid immediately, in which event all such Affected Loans shallbe required to be repaid in full by the Borrowers as of the effective date ofsuch notice as provided in paragraph (b) below.

 

In the event any Lender shall exercise its rights under (i)or (ii) above with respect to any Affected Loans which are not ForeignCurrency Loans, all payments and prepayments of principal which would otherwisehave been applied to repay the Affected Loans that would have been made by suchLender or the converted Affected Loans of such Lender shall instead be appliedto repay the Alternate Base Rate Loans made by such Lender in lieu of, orresulting from the conversion, of such Affected Loans.

 

(b)           For purposes of thisSection 2.14, a notice to the Borrowers by any Lender shall be effectiveas to each such Affected Loan, if lawful, on the last day of the InterestPeriod currently applicable to such Affected Loan; in all other cases suchnotice shall be effective on the date of receipt by the Borrowers.

 

## **Section 2.15**                            Deposits Unavailable;Impractibility.

## ** **

If any of the Borrowers has notified theAdministrative Agent of its intention to borrow a LIBOR Loan for an InterestPeriod and the Administrative Agent determines (which determination shall beconclusive and binding on the applicable Borrower) that:

 

(a)           deposits of the necessary amount forsuch Interest Period are not available to the Lenders in the London interbankmarket or, by reason of circumstances affecting such market, adequate andreasonable means do not exist for ascertaining LIBOR for such Interest Period;or

 

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(b)           the making or funding of LIBOR Loanshas become impracticable as a result of any event occurring after the date ofthis Credit Agreement which, in the opinion of the Lenders, materially andadversely affects such Loans or the London interbank market;

 

then any notice of a LIBOR Loan previously given by the Borrowers andnot yet borrowed shall be deemed to be a notice to make a Base Rate Loan.

 

## **Section 2.16         IncreasedCost.**

## ** **

Each Borrower agrees toreimburse any Lender for any increase in the cost to such Lender of, or anyreduction in the amount of any sum receivable by such Lender from any Borrowerin respect of, making or maintaining any LIBOR Rate Loans relating to theadoption of any law, rule or regulation or any change therein or any change inthe interpretation or administration thereof by any Governmental Authority,central bank or comparable agency charged with the interpretation oradministration thereof.  The additionalamount required to compensate such Lender for such increased cost or reducedamount shall be payable by the applicable Borrower to such Lender within fivedays of the Borrower’s receipt of written notice from such Lender specifyingsuch increased cost or reduced amount and the amount required to compensatesuch Lender therefor, which notice shall, in the absence of manifest error, beconclusive and binding on the Borrowers. In determining such additional amount, the applicable Lender may use reasonableaveraging, attribution and allocation methods. The agreements in this Section 2.16 shall survive the terminationof this Credit Agreement and payment of the Borrower Obligations.

 

## **Section 2.17         Increased Capital Costs.**

## ** **

If any change in, or theintroduction, adoption, effectiveness, interpretation, reinterpretation orphase-in of, any law or regulation, directive, guideline, decision or request(whether or not having the force of law) of any court, central bank, regulatoror other Governmental Authority affects or would affect the amount of capitalrequired or expected to be maintained by any Lender or any entity controllingsuch Lender, and such Lender determines (in its sole and absolute discretion)that the rate of return on its or such controlling entity’s capital as aconsequence of the Loans made by such Lender or the commitment hereunder isreduced to a level below that which the Lender or such controlling entity couldhave achieved but for the occurrence of any such circumstance, then, in anysuch case, upon notice from time to time by any Lender to the Borrowers, theBorrowers shall immediately pay directly to such Lender additional amountssufficient to compensate such Lender or such controlling entity for suchreduction in rate of return.  Astatement of such Lender as to any such additional amount or amounts (includingcalculations thereof in reasonable detail) shall, in the absence of manifesterror, be conclusive and binding on the Borrowers.  In determining such amount, the applicable Lender may usereasonable averaging, attribution and allocation methods.  The agreements in this Section 2.17shall survive the termination of this Credit Agreement and payment of theBorrower Obligations.

 

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## **Section 2.18         FundingLosses.**

## ** **

The Borrowers jointly and severally will indemnify anyLender upon demand against any loss or expense which such Lender may sustain orincur (including, without limitation, any loss or expense sustained or incurredin obtaining, liquidating or employing deposits or other funds acquired toeffect, fund or maintain any Loan) as a consequence of (i) any failure of anyBorrower to make any payment when due of any amount due hereunder, (ii) anyfailure of any Borrower to borrow a Loan on a date specified therefor in a noticethereof, or (iii) any payment (including any payment upon such Lender’sacceleration of the Loans) or prepayment of any LIBOR Loan on a date other thanthe last day of the Interest Period for such Loan.

 

## **Section 2.19         Taxes.**

## ** **

(a)           All payments made by the Borrowershereunder or under any Note shall be, except as provided in Section 2.19(b),made free and clear of, and without deduction or withholding for, any and allpresent or future taxes, levies, imposts, duties, fees, assessments or othercharges of whatever nature now or hereafter imposed by any GovernmentalAuthority or by any political subdivision or taxing authority thereof ortherein with respect to such payments (but excluding any tax imposed on ormeasured by the net income or profits or any franchise or other tax in lieuthereof (including branch profits or similar taxes) of a Lender) and allinterest, penalties or similar liabilities with respect thereto (all suchnon-excluded taxes, levies, imposts, duties, fees, assessments or other chargesbeing referred to collectively as “Taxes”).  If any Taxes are so levied or imposed, the Borrowers agree to paythe full amount of such Taxes, and such additional amounts as may be necessaryso that every payment of all amounts due under this Credit Agreement or underany Note, after withholding or deduction for or on account of any Taxes, willnot be less than the amount provided for herein or in such Note.  The Borrowers will furnish to theAdministrative Agent as soon as practicable after the date the payment of anyTaxes is due pursuant to applicable law certified copies (to the extentreasonably available and required by law) of tax receipts evidencing suchpayment by the applicable Borrower.  TheBorrowers jointly and severally agree to indemnify and hold harmless eachLender, and reimburse such Lender upon its written request, for the amount ofany Taxes so levied or imposed and paid by such Lender.

 

(b)           Each Lender that is not aUnited States person (as such term is defined in Section 7701(a)(30)of the Code) agrees to deliver to the Borrowers and the Administrative Agent onor prior to the Closing Date, or in the case of a Lender that is an assignee ortransferee of an interest under this Credit Agreement pursuant toSection 9.5(g) (unless the respective Lender was already a Lenderhereunder immediately prior to such assignment or transfer), on the date ofsuch assignment or transfer to such Lender two accurate and complete originalsigned copies of Internal Revenue Service Form W-8BEN or W-8ECI (or any successorforms prescribed by the Internal Revenue Service) certifying such Lender’sentitlement to a complete exemption from United States withholding taxwith respect to payments to be made under this Credit Agreement and under anyNote.  Each other Lender shall provideBorrowers with two accurate and complete original signed copies of InternalRevenue Form W-9 or any successor form prescribed by the Internal RevenueService.  In addition, each Lenderagrees that it will deliver upon any Borrower’s request updated versions of theforegoing, as applicable, whenever

 

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the previouscertification has become obsolete or inaccurate in any material respect,together with such other forms as may be required in order to confirm orestablish the entitlement of such Lender to a continued exemption from orreduction in United States withholding tax with respect to payments underthis Credit Agreement and any Note. Notwithstanding anything to the contrary contained in Section 2.19(a),but subject to the immediately succeeding sentence, (A) the Borrowersshall be entitled, to the extent it is required to do so by law, to deduct orwithhold Taxes imposed by the United States (or any political subdivisionor taxing authority thereof or therein) from interest, fees or other amountspayable hereunder for the account of any Lender which is not aUnited States person (as such term is defined in Section 7701(a)(30)of the Code) for U.S. Federal income tax purposes to the extent that suchLender has not provided to the Borrowers U.S. Internal Revenue Service Formsthat establish a complete exemption from such deduction or withholding and(B) the Borrowers shall not be obligated pursuant to Section 2.19(a)hereof to gross-up payments to be made to a Lender in respect of Taxes imposedby the United States if such Lender has not provided to the Borrowers theInternal Revenue Service Forms required to be provided to the Borrowerspursuant to this Section 2.19(b). Notwithstanding anything to the contrary contained in the precedingsentence or elsewhere in this Section 2.19(d), the Borrowers, jointly andseverally, agree to pay additional amounts and to indemnify each Lender in themanner set forth in Section 2.19(a) (without regard to the identity of thejurisdiction requiring the deduction or withholding) in respect of any amountsdeducted or withheld by it as described in the immediately preceding sentenceas a result of any changes after the Closing Date in any applicable law, treaty,governmental rule, regulation, guideline or order, or in the interpretationthereof, relating to the deducting or withholding of Taxes.

 

(c)           Each Lender agrees to use reasonableefforts (including reasonable efforts to change its Domestic Lending Office orLIBOR Lending Office, as the case may be) to avoid or to minimize any amountswhich might otherwise be payable pursuant to this Section; provided, however,that such efforts shall not cause the imposition on such Lender of anyadditional costs or legal or regulatory burdens deemed by such Lender in itssole discretion to be material.  For theavoidance of doubt, each Lender lending to IMS Japan K.K. shall usecommercially reasonable efforts to lend such funds through a lending officelocated in Japan or the United States, and each Lender lending to IMS A.G.shall use its commercially reasonable efforts to lend such funds through alending office located in Switzerland.

 

(d)           If any Borrower pays any additionalamount pursuant to this Section 2.19 with respect to a Lender, such Lendershall use commercially reasonable efforts to obtain a refund of tax or creditagainst its tax liabilities on account of such payment.  In the event that such Lender receives sucha refund or credit, such Lender shall pay to the applicable Borrower an amountthat such Lender reasonably determines is equal to the net tax benefit obtainedby such Lender as a result of such payment by the applicable Borrower.  In the event that no refund or credit isobtained with respect to a Borrower’s payments to such Lender pursuant to thisSection 2.19, then such Lender shall upon request provide a certification thatsuch Lender has not received a refund or credit for such payments.  Nothing contained in this Section 2.19 shallrequire a Lender to disclose or detail the basis of its calculation of theamount of any tax benefit or any other amount or the basis of its determinationreferred to in the proviso to the first sentence of this Section 2.19 to theBorrowers or any other party.

 

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(e)           If any Lender entitled to additionalcompensation under any of the foregoing provisions of this Section 2.19 shallfail to designate a different Applicable Lending Office as provided insubsection (c) of this Section 2.19 promptly after receiving notice from aBorrower, then such Borrower may cause such Lender to (and, if such Borrower sodemands, such Lender shall) assign all of its rights and obligations under thisCredit Agreement or any Note to one or more other persons identified by theBorrower and reasonably acceptable to the Administrative Agent.

 

(f)            To the extent that no Default orEvent of Default has occurred or is continuing, no Lender who becomes a partyto this Credit Agreement by accepting an assignment of an interest herein fromanother Lender shall be entitled to receive any additional amounts pursuant tothis Section 2.19 in excess of the amounts that would have been payable to theassignor Lender prior to such assignment.

 

(g)           The agreements in this Section 2.19shall survive the termination of this Credit Agreement and the payment of theBorrower Obligations.  Notwithstandingthe foregoing, the terms in this Section 2.19 shall only apply to a Foreign Borrowerto the extent such Borrower has received an Extension of Credit hereunder.

 

## **Section 2.20         Indemnification; Nature of IssuingLender’s Duties.**

## ** **

(a)           In addition to its other obligationsunder Section 2.2, each of the Borrowers hereby agree to protect,indemnify, pay and save the Issuing Lender harmless from and against any andall claims, demands, liabilities, damages, losses, costs, charges and expenses(including reasonable attorneys’ fees) that the Issuing Lender may incur or besubject to as a consequence, direct or indirect, of (i) the issuance ofany Letter of Credit or (ii) the failure of the Issuing Lender to honor adrawing under a Letter of Credit as a result of any act or omission, whetherrightful or wrongful, of any present or future de jure or de facto governmentor Governmental Authority (all such acts or omissions, herein called “GovernmentActs”).

 

(b)           As between the Borrowers and theIssuing Lender, the Borrowers shall assume all risks of the acts, omissions ormisuse of any Letter of Credit by the beneficiary thereof.  The Issuing Lender shall not beresponsible:  (i) for the form,validity, sufficiency, accuracy, genuineness or legal effect of any documentsubmitted by any party in connection with the application for and issuance ofany Letter of Credit, even if it should in fact prove to be in any or allrespects invalid, insufficient, inaccurate, fraudulent or forged; (ii) forthe validity or sufficiency of any instrument transferring or assigning orpurporting to transfer or assign any Letter of Credit or the rights or benefitsthereunder or proceeds thereof, in whole or in part, that may prove to beinvalid or ineffective for any reason; (iii) for failure of thebeneficiary of a Letter of Credit to comply fully with conditions required inorder to draw upon a Letter of Credit; (iv) for errors, omissions,interruptions or delays in transmission or delivery of any messages, by mail,cable, telegraph, telex or otherwise, whether or not they be in cipher;(v) for errors in interpretation of technical terms; (vi) for anyloss or delay in the transmission or otherwise of any document required inorder to make a drawing under a Letter of Credit or of the proceeds thereof;and (vii) for any consequences arising from causes beyond the control ofthe

 

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Issuing Lender,including, without limitation, any Government Acts.  None of the above shall affect, impair, or prevent the vesting ofthe Issuing Lender’s rights or powers hereunder.

 

(c)           In furtherance and extension and notin limitation of the specific provisions hereinabove set forth, any actiontaken or omitted by the Issuing Lender, under or in connection with any Letterof Credit or the related certificates, if taken or omitted in good faith, shallnot put such Issuing Lender under any resulting liability to theBorrowers.  It is the intention of theparties that this Credit Agreement shall be construed and applied to protectand indemnify the Issuing Lender against any and all risks involved in theissuance of the Letters of Credit, all of which risks are hereby assumed by theBorrowers, including, without limitation, any and all risks of the acts oromissions, whether rightful or wrongful, of any Government Authority.  The Issuing Lender shall not, in any way, beliable for any failure by the Issuing Lender or anyone else to pay any drawingunder any Letter of Credit as a result of any Government Acts or any othercause beyond the control of the Issuing Lender.

 

(d)           Nothing in this Section 2.20 isintended to limit the reimbursement obligation of the Borrowers contained inSection 2.2(d) hereof.  Theobligations of the Borrowers under this Section 2.20 shall survive thetermination of this Credit Agreement. No act or omissions of any current or prior beneficiary of a Letter ofCredit shall in any way affect or impair the rights of the Issuing Lender toenforce any right, power or benefit under this Credit Agreement.

 

(e)           Notwithstanding anything to thecontrary contained in this Section 2.20, the Borrowers shall have noobligation to indemnify the Issuing Lender in respect of any liability incurredby the Issuing Lender arising out of the bad faith, gross negligence or willfulmisconduct of the Issuing Lender (including action not taken by the IssuingLender), as determined by a court of competent jurisdiction.

 

# **ARTICLEIII**

# ** **

# **REPRESENTATIONS AND WARRANTIES**

# ** **

To induce the Lenders toenter into this Credit Agreement and to make the Extensions of Credit hereinprovided for, the Borrowers hereby represent and warrant to the AdministrativeAgent and to each Lender that:

 

## **Section 3.1            Existence.**

## ** **

Each of the Borrowers isa corporation duly formed, validly existing and in good standing under the lawsof its jurisdiction of incorporation, has all requisite power and authority,and the legal right, to own, operate and lease its properties and to carry onthe business in which it is engaged or presently proposes to engage, and isduly qualified or licensed under the laws of each jurisdiction where it isrequired to be so qualified or licensed except where the failure to be soqualified could not, individually or in the aggregate, reasonably be expectedto cause a Material Adverse Change, and is in compliance with all Requirementsof Law except to the extent that

 

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failure to complytherewith could not, individually or in the aggregate, reasonably be expectedto cause a Material Adverse Change.

 

## **Section 3.2            Power and Authorization;Enforceable Obligations.**

## ** **

Each of the Borrowers hasall requisite power and authority to execute, deliver and perform this CreditAgreement and the other Credit Documents to which it is a party and to borrowthe Loans hereunder.  Each of theBorrowers has taken all necessary corporate and legal action to authorize theborrowings hereunder on the terms and conditions of this Credit Agreement andthe other Credit Documents to which it is a party and to authorize theexecution, delivery and performance of this Credit Agreement and the otherCredit Documents to which it is a party. Each of the Credit Agreement and the other Credit Documents have beenexecuted and delivered by a duly authorized officer of each of theBorrowers.  This Credit Agreement constitutes,and upon execution thereof, each other Credit Document will constitute, alegal, valid and binding obligation of each applicable Borrower enforceableagainst such Borrower in accordance with its terms, except as suchenforceability may be limited by bankruptcy, insolvency, moratorium,reorganization or other similar laws affecting creditors’ rights generally andexcept as enforceability may be limited by general principles of equity and animplied covenant of good faith.

 

## **Section 3.3            NoLegal Bar to Loans.**

## ** **

The execution, deliveryand performance of this Credit Agreement and the other Credit Documents by eachof the Borrowers will not violate any provision of any existing law, treaty orregulation or of any order, judgment, award or decree of any court, arbitratoror Governmental Authority or of any Requirement of Law or ContractualObligation applicable to the Borrowers and will not result in the creation orimposition of any Lien on any of the material properties or assets of any ofthe Borrowers pursuant to the provisions of any such Requirement of Law orContractual Obligation except, to the extent such violation or Lien could not,individually or in the aggregate, reasonably be expected to cause a MaterialAdverse Change.

 

## **Section 3.4            Financial Information;Disclosure, etc.**

## ** **

The Periodical SECReports of the Company and the related statements of income, shareholders’equity and cash flows for any applicable period, copies of which haveheretofore been furnished to the Administrative Agent and the Lenders, presentfairly in all material respects the financial condition of the Company as ofthe end of such period.  All financialstatements included therein, including the related schedules and notes, if any,have been prepared in accordance with GAAP applied consistently throughout theperiods involved, except as set forth in the notes thereto (subject, in thecase of any interim financial statements, to normal year-end adjustments).  Since December 31, 2003, there has been noMaterial Adverse Change.

 

## **Section 3.5**            Licenses, Permits, etc.

## ** **

No materialauthorizations, licenses and permits of any Governmental Authority are requiredor necessary for the conduct of the business of the Company as now conducted or

 

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proposed to be conductedby it except for such authorizations, licenses and permits (i) as have beenobtained and are in full force and effect, or (ii) the failure to have obtainedwhich could not reasonably be expected to result, either individually or in theaggregate, in a Material Adverse Change.

 

## **Section 3.6            Tax Returns and Payments.**

## ** **

Each of the Borrowers hasfiled all tax returns and information statements required by law to be filedand has paid all taxes, assessments and other governmental charges levied uponor in respect of any of its properties, assets, income, licenses or franchises,other than those not yet delinquent, those not substantial in aggregate amount,those being or about to be contested and those the failure of which to paycould not reasonably be expected to cause a Material Adverse Change.  The charges, accruals and reserves on thebooks of each of the Borrowers in respect of its taxes are adequate in theopinion of such Borrower, and none of the Borrowers knows of any unpaidassessment for additional taxes material in amount or of any reasonable basistherefor.  No tax liens have been filed,and, to the knowledge of each of the Borrowers, no claims are being assertedwith respect to any such taxes, fees or other charges.

 

## **Section 3.7            Tit**leto Properties; Liens.

## ** **

Each of the Borrowers andthe Subsidiaries have sufficient title to all of their material properties andassets for the conduct of their respective business as presently conducted andproposed to be conducted by them.  Eachof the Borrowers and the Subsidiaries enjoy quiet possession under all materialreal property leases to which it is a party as lessee, and all of its materialleases are valid, subsisting and in full force and effect.

 

## **Section 3.8**            Litigation, etc.

## ** **

Except as disclosed inthe Periodical SEC Reports of the Company or in any report on Form 8-K filed bythe Company with the SEC, there is no action, proceeding or investigationpending or, to the knowledge of any Borrower, threatened (or any basis thereforknown to any Borrower) which questions the validity of this Credit Agreement orthe other Credit Documents executed in connection herewith, or any action takenor to be taken pursuant hereto or thereto, or which could reasonably beexpected to result, individually or in the aggregate, in a Material AdverseChange.

 

## **Section 3.9**            No Default.

## ** **

No Default or Event ofDefault has occurred and is continuing. No Borrower nor any of the Subsidiaries is in violation of anyRequirement of Law or any term of any Contractual Obligation applicable to anyBorrower or such Subsidiary, the violation of which could reasonably beexpected to cause a Material Adverse Change. Without limiting the scope of the foregoing, each of the Borrowers andtheir Subsidiaries are in compliance in all material respects with allEnvironmental Laws, the violation of which could be reasonably expected tocause a Material Adverse Change.

 

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## **Section 3.10         Governmental and Other Consents.**

## ** **

No Borrower is requiredto obtain any order, consent, approval or authorization of or to make anydeclaration or filing with, any Governmental Authority or any other Person inconnection with the execution and delivery, of and performance under, thisCredit Agreement and the other Credit Documents, unless the failure to do socould not reasonably be expected to cause a Material Adverse Change.

 

## **Section3.**11         RegulationU, etc.

## ** **

Except for systematicstock repurchase programs from time to time conducted by the Company, none ofthe proceeds of the Loans will be used, directly or indirectly, by any Borrowerfor the purpose of purchasing or carrying, or for the purpose of reducing orretiring any Indebtedness which was originally incurred to purchase or carry,any margin stock or for any other purpose which might constitute thetransactions contemplated hereby a “purpose credit” within the meaning of saidRegulation U, or cause this Agreement to violate Regulation T, Regulation U,Regulation X, or any other regulation of the Board of Governors of The FederalReserve System or the Exchange Act.

 

## **Section 3.12         InvestmentCo**mpany Act; Other Regulations.

## ** **

No Borrower is an“investment company” or a company “controlled” by an “investment company”,within the meaning of the Investment Company Act of 1940, as amended.  No Borrower is subject to regulation underany federal, state or other statute or regulation which limits its ability toincur Indebtedness.

 

## **Section 3.13         Co**mpliancewith ERISA.

## ** **

Each Plan is insubstantial compliance with ERISA and the Code; no Reportable Event hasoccurred with respect to a Plan; no Plan is insolvent or in reorganization; noPlan has an unfunded current liability within the meaning of Section 412(1)(8)of the Code; no Plan has an accumulated or waived funding deficiency, haspermitted decreases in its funding standard account or has applied for a waiverof the minimum funding standard or an extension of any amortization periodwithin the meaning of Section 412 of the Code; all contributions required to bemade with respect to a Plan have been timely made, neither the Company nor anyERISA Affiliate has incurred any material liability to or on account of a Planpursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201,4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code orreasonably expects to incur any material liability (including any indirect,contingent or secondary liability) under any of the foregoing Sections withrespect to any Plan (other than liabilities of any ERISA Affiliate which couldnot, by operation of law or otherwise, become a liability of the Company); noproceedings have been instituted to terminate, or to appoint a trustee toadminister, any Plan; no condition exists which presents a material risk to theCompany or any ERISA Affiliate of incurring a liability to or on account of aPlan pursuant to the foregoing provisions of ERISA and the Code; usingactuarial assumptions and computation methods consistent with Part I ofSubtitle E of Title IV of ERISA, the aggregate liabilities of the Company andits ERISA Affiliates to all Plans which are multi-

 

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employer plans (asdefined in Section 4001(a)(3) of ERISA) in the event of a complete withdrawaltherefrom, as of the close of the most recent fiscal year of each such Planended prior to the Closing Date would not result in a Material Adverse Changeon the financial condition of the Company; and no lien imposed under the Codeor ERISA on the assets of the Company or any ERISA Affiliate exists or islikely to arise on account of any Plan. Anything in this Section 3.13 to the contrary notwithstanding, therepresentations herein are qualified by the uncertainty created by the 2003decision of the District Court for the Southern District of Illinois in Cooperv. IBM Personal Pension Plan that cash balance pensions plans violateERISA; however, there are no actions, suits or claims pending or, to the bestknowledge of the Borrowers, threatened or anticipated (other than routineclaims for benefits) against the Borrowers or the cash balance pension planmaintained by the Company.

 

## **Section 3.14         En**vironmentalMatters.

## ** **

To the best knowledge ofthe Borrowers, except as disclosed in the Periodical SEC Reports of the Companyor in any report on Form 8-K filed by the Company with the SEC, each of therepresentations and warranties set for the in paragraphs (a) through (e) ofthis subsection is true and correct with respect to each parcel of realproperty owned or operated (within the meaning of any Environmental Law) by theBorrowers or any of the Company’s Subsidiaries (the “Properties”),except to the extent that the facts and circumstances giving rise to any suchfailure to be so true and correct could not, individually or in the aggregate,reasonably be expected to cause a Material Adverse Change:

 

(a)           The Properties do not contain, andhave not previously contained, in, on, or under, including, without limitation,the soil and groundwater thereunder, any Hazardous Materials in violation ofany Environmental Laws.

 

(b)           The Properties and all operations andfacilities at the Properties are in compliance with all Environmental Laws, andthere is no Hazardous Materials contamination or violation of any EnvironmentalLaw which could interfere with the continued operation of any of the Propertiesor impair the fair salable value of any thereof.

 

(c)           Neither the Company nor anySubsidiary has received any complaint, notice of violation, alleged violation,investigation or advisory action or of potential liability or of potentialresponsibility regarding environmental protection matters or permit compliancewith regard to the Properties, nor is the Company aware that any GovernmentalAuthority is contemplating delivering to the Company any such notice.

 

(d)           Hazardous Materials have not been generated,treated, stored, disposed of, at, on or under any of the Properties, nor haveany Hazardous Materials been transferred from the Properties to any otherlocation in violation of any Environmental Laws.

 

(e)           There are no governmental,administrative actions or judicial proceedings pending or contemplated underany Environmental Laws to which the Company is or will be named as a party withrespect to the Properties, nor are there any consent decrees or

 

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other decrees, consentorders, administrative orders or other orders, or other administrative orjudicial requirements outstanding under any Environmental Law with respect toany of the Properties.

 

# **ARTICLE IV**

# ** **

# **CONDITIONS PRECEDENT**

# ** **

## **Section 4.1            Conditions to Closing Date andInitial Revolving Loans.**

## ** **

The obligation of eachLender to make the initial Revolving Loans on the Closing Date is subject tothe prior or concurrent satisfaction of the following conditions:

 

(a)           Execution of Agreement.  The Administrative Agent shall have received(i) counterparts of this Credit Agreement, (ii) for the account ofeach Lender, Revolving Notes, (iii) for the account of the SwinglineLender, the Swingline Note, and (iv) counterparts of the 364-Day CreditAgreement, in each case conforming to the requirements of this Credit Agreementand executed by a duly authorized officer of each party thereto.

 

(b)           Authority Documents.  The Administrative Agent shall have receivedthe following:

 

(i)            Articles of Incorporation.  Copies of the articles of incorporation orother charter documents, as applicable, of each Borrower certified (A) by thesecretary or an assistant secretary of such Borrower (pursuant to a secretary’scertificate in substantially the form of Schedule 4.1(b) attachedhereto) as of the Closing Date to be true and correct and in force and effectas of such date, and (B) to be true and complete as of a recent date by theappropriate Governmental Authority of the state of its incorporation ororganization, as applicable.

 

(ii)           Resolutions.  Copies of resolutions of the board ofdirectors or comparable managing body of each Borrower approving and adoptingthe Credit Documents, the transactions contemplated therein and authorizingexecution and delivery thereof, certified by a secretary or assistant secretaryof such Borrower (pursuant to a secretary’s certificate in substantially theform of Schedule 4.1(b) attached hereto) as of the Closing Date tobe true and correct and in force and effect as of such date.

 

(iii)          Bylaws.  A copy of the bylaws or comparable operatingagreement of each Borrower certified by a secretary or assistant secretary ofsuch Borrower (pursuant to a secretary’s certificate in substantially the formof Schedule 4.1(b) attached hereto) as of the Closing Date to betrue and correct and in force and effect as of such date.

 

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(iv)          Good Standing.  Copies of (i) certificates of goodstanding, existence or its equivalent with respect to the each Borrowercertified as of a recent date by the appropriate Governmental Authorities ofthe state of incorporation and each other state in which the failure to soqualify and be in good standing could reasonably be expected to result in aMaterial Adverse Change on the business or operations of the Borrowers and theSubsidiaries in such state and (ii) a certificate indicating payment ofall corporate franchise taxes certified as of a recent date by the appropriategovernmental taxing authorities.

 

(v)           Incumbency.  An incumbency certificate of each Borrowercertified by a secretary or assistant secretary (pursuant to a secretary’scertificate in substantially the form of Schedule 4.1(b) attachedhereto) to be true and correct as of the Closing Date.

 

(c)           Legal Opinions of Counsel.Subject to Section 4.3(b), the Administrative Agent shall have receivedopinions of counsel for the Borrowers, dated the Closing Date and addressed tothe Administrative Agent and the Lenders, which opinion shall provide that theBorrowers are in compliance with (i) all corporate instruments and (ii) in allmaterial respects, Contractual Obligations, in each case, on the Closing Dateafter giving effect to initial Extensions of Credit hereunder.

 

(d)           Officer’s Certificate.  The Administrative Agent shall have receiveda certificate executed by a Responsible Officer of the Company as of theClosing Date stating that immediately after giving effect to this CreditAgreement, the other Credit Documents, and all the transactions contemplatedtherein to occur on such date, (i) no Default or Event of Default exists, (ii)all representations and warranties contained herein and in the other CreditDocuments are true and correct, and (iii) the Company is in compliance witheach of the financial covenants set forth in Section 6.6, as demonstrated bycovenant calculations on a schedule attached thereto.

 

(e)           Account Designation Letter.  The Administrative Agent shall have receivedthe executed Account Designation Letter in the form of Schedule 1.1hereto.

 

(f)            Solvency Certificate.  The Administrative Agent shall have receivedan officer’s certificate for each Borrower prepared by a Responsible Officer ofsuch Borrower as to the financial condition, solvency and related matters ofsuch Borrower, in each case after giving effect to the initial borrowings underthe Credit Documents, in substantially the form of Schedule 4.1(f)hereto.

 

(g)           Material Adverse Change.  No Material Adverse Change shall haveoccurred since December 31, 2003.

 

(h)           Financial Statements.  The Administrative Agent shall have receivedcopies of the financial statements referred to in Section 3.4 hereof, eachin form and substance satisfactory to it.

 

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(i)            Fees.  The Administrative Agent and the Lendersshall have received all fees, if any, owing pursuant to the Fee Letter andSection 2.4.

 

(j)            Termination of ExistingIndebtedness.  All existingIndebtedness for borrowed money of the Borrowers and the Company’s Subsidiarieswith respect to the Bilateral Credit Agreements shall have been (orcontemporaneously with funding will be) repaid in full, all commitmentsthereunder shall have been terminated and all Liens relating thereto, if any,shall have been terminated.

 

(k)           Corporate Structure.  The corporate capital and ownershipstructure of the Borrowers shall be as described in the Form 10-K of theCompany for the year ended December 31, 2003. The Administrative Agent and the Lenders shall be satisfied with thecorporate and capital structure of the Borrowers and the Material Subsidiaries.

 

## **Section 4.2            Conditions to All Extensions ofCredit.**

 

The obligation of eachLender to make any Extension of Credit hereunder is subject to the satisfactionof the following conditions precedent on the date of making such Extension ofCredit:

 

(a)           Representations and Warranties.  The representations and warranties made bythe Borrowers herein, in the other Credit Documents or which are contained inany certificate furnished at any time under or in connection herewith shall betrue and correct on and as of the date of such Extension of Credit as if madeon and as of such date, unless stated to relate solely to an earlier date, inwhich case such representations and warranties shall be true and correct as ofsuch earlier date.

 

(b)           No Default or Event of Default.  No Default or Event of Default shall haveoccurred and be continuing on such date or after giving effect to the Extensionof Credit to be made on such date unless such Default or Event of Default shallhave been waived in accordance with this Credit Agreement or other applicableinstrument or agreement.

 

(c)           Compliance with Commitments.  Immediately after giving effect to themaking of any such Extension of Credit (and the application of the proceeds thereof),(i) the sum of outstanding Revolving Loans plus outstandingSwingline Loans plus LOC Obligations shall not exceed the AggregateRevolving Committed Amount, (ii) the LOC Obligations shall not exceed theLOC Committed Amount and (iii) the Swingline Loans shall not exceed theSwingline Committed Amount.

 

(d)           Additional Conditions to RevolvingLoans.  If a Revolving Loan isrequested, all conditions set forth in Section 2.1 shall have beensatisfied.

 

(e)           Additional Conditions to SwinglineLoans.  If a Swingline Loan isrequested, all conditions set forth in Section 2.3 shall have beensatisfied.

 

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(f)            Additional Conditions to Lettersof Credit.  If the issuance of aLetter of Credit is requested, all conditions set forth in Section 2.2shall have been satisfied.

 

Each request for anExtension of Credit and each acceptance by a Borrower of any such Extension ofCredit shall be deemed to constitute a representation by such Borrower as tothe matters set forth in paragraphs (a) and (b) of this Section 4.2.

 

## **Section 4.3            Condition to Initial Extension ofCredit to any Foreign Borrower.**

## ** **

(a)           The obligation of each Lender to makeany initial Extension of Credit to a Foreign Borrower hereunder is subject toreceipt by the Administrative Agent of the English translation of the documentsset forth in Section 4.1(b) in form and substance reasonably satisfactory tothe Administrative Agent.

 

(b)           The obligation of each Lender to makeany initial Extension of Credit to the Japanese Borrower hereunder is subjectto receipt by the Administrative Agent:

 

(i)            opinion of counsel for the JapaneseBorrower, addressed to the Administrative Agent and the Lenders, which opinionshall provide that the Japanese Borrower is in compliance with (i) allcorporate instruments and (ii) in all material respects, ContractualObligations after giving effect to initial Extensions of Credit hereunder, inform and substance reasonably satisfactory to the Administrative Agent;  and

 

(ii)           a duly executed promissory note ofthe Japanese Borrower to Fortis Capital Corp. and KeyBank National Associationin substantially the form of Schedule 2.1(e).

 

# **ARTICLE V**

# ** **

# **AFFIRMATIVE COVENANTS**

# ** **

The Borrowers herebycovenant and agree that on the Closing Date, and thereafter for so long as thisCredit Agreement is in effect and until the Commitments have terminated, noNote remains outstanding and unpaid and the Borrower Obligations, together withinterest, Commitment Fee, are paid in full, the Borrowers will:

 

## **Section 5.1            FinancialInformation.**

## ** **

Furnish to theAdministrative Agent and each of the Lenders:

 

(a)           As soon as available and in any eventwithin 45 days after the end of each of the first three quarters of each fiscalyear, the Company’s Form 10-Q containing the consolidated balance sheets of theCompany and its Subsidiaries as at the end of such

 

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quarterly fiscal periodand statements of earnings and cash flow of the Company and its Subsidiaries ona consolidated basis for such period, certified by a Responsible Officer of theCompany;

 

(b)           as soon as available and in any eventwithin 90 days after the end of each fiscal year of the Company, the Company’sForm 10-K containing a copy of the annual audit report for such fiscal year forthe Company and its Subsidiaries on a consolidated basis, including balancesheets of the Company and its Subsidiaries on a consolidated basis as of theend of such fiscal year and statements of earnings and cash flow on a consolidatedbasis for such fiscal year, in each case certified in a manner acceptable tothe Administrative Agent by independent public accountants acceptable to theAdministrative Agent;

 

(c)           concurrently with the delivery of thefinancial statements described in paragraphs (a) and (b), a certificate from aResponsible Officer of the Company certifying whether there exists any Defaultor Event of Default, and setting forth the Leverage Ratio and the Fixed ChargeCoverage Ratio as of the end of the period covered by such financialstatements;

 

(d)           promptly, copies of all financialstatements and reports that the Company sends to its shareholders, and copiesof all financial statements and regular, periodical or special reports(including Forms 10-K, 10-Q and 8-K) that the Company or any Subsidiary maymake to, or file with, the SEC; and

 

(e)           such other information with respectto the condition or operations, financial or otherwise, of the Company and itsSubsidiaries as the Administrative Agent or any Lender may from time to timereasonably request.

 

Any of the above documents that are filedelectronically by the Company with the SEC shall be deemed to have beenprovided to the Administrative Agent and the Lenders on the date the same areavailable on EDGAR.

 

## **Section 5.2            Useof Proceeds.**

## ** **

Use the proceeds of Loansfor the general corporate purposes of the Borrowers, including, withoutlimitation, the repurchase of the Company’s shares.

 

## **Section 5.3            Paymentof Obligations.**

## ** **

If and to the extent thefailure to do so could reasonably be expected to cause a Material AdverseChange, pay, discharge or otherwise satisfy at or before maturity or beforethey become delinquent, as the case may be, all its Indebtedness and otherobligations of whatever nature, except where the amount or validity thereof iscurrently being contested in good faith by appropriate proceedings and reservesin conformity with GAAP with respect thereto have been provided on the books ofthe Company; and cause each of its Subsidiaries so to do.

 

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## **Section 5.4            Conduct of Business andMaintenance of Existence.**

## ** **

(a)           Continue to engage in business of thesame general type as now conducted by it and preserve, renew and keep in fullforce and effect its corporate existence and take all reasonable action tomaintain all rights, privileges and franchises necessary or desirable in thenormal conduct of its business (except to the extent that failure to do socould not, individually or in the aggregate, reasonably be expected to cause aMaterial Adverse Change).

 

(b)           Comply with all ContractualObligations and Requirements of Law except to the extent that failure to complytherewith could not individually or in the aggregate, reasonably be expected tocause a Material Adverse Change.

 

## **Section 5.5            Insurance.**

## ** **

Maintain on aconsolidated basis, adequate insurance coverage on all its properties, withfinancially sound and reputable insurance companies.

 

## **Section 5.6            Booksand Records.**

## ** **

Keep proper books ofrecords and account in which full, true and correct entries in conformity withGAAP and all Requirements of Law shall be made of all dealings and transactionsin relation to its business and activities.

 

## **Section 5.7            Notices.**

## ** **

Promptly, upon gainingactual knowledge thereof, give notice to the Administrative Agent and eachLender of

 

(a)           the occurrence of any Default orEvent of Default, and

 

(b)           any Material Adverse Change;provided, however, that no Borrower shall be required to give notice under thisparagraph (b) unless such change requires the Company to file a report onForm 8-K with the SEC.

 

Each notice pursuant tothis subsection shall be accompanied by a statement of a Responsible Officersetting forth details of the occurrence referred to therein and stating whataction (if any) the Company proposes to take with respect thereto.

 

## **Section 5.8            Paymentof Taxes.**

## ** **

If and to the extent thefailure to do any of the following could, individually or in the aggregate,reasonably be expected to cause a Material Adverse Change, pay and discharge,and cause each Subsidiary to pay and discharge, prior to their becomingdelinquent all taxes, assessments and other governmental charges or leviesimposed upon it or its income or upon any of its property or assets, or uponany part thereof, as well as all lawful claims of any kind

 

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(including claims forlabor, materials and supplies) which, if unpaid, might by law become a Lienupon its property; provided, that no Borrower nor any Subsidiary will berequired to pay any such tax, assessment, charge, levy or claim if the amount,applicability or validity thereof shall be contested in good faith byappropriate proceedings or other appropriate actions diligently conducted andif such Borrower or any such Subsidiary shall have set aside on its books suchreserves, if any, with respect thereto as are required by GAAP and deemedappropriate by the Company and its independent public accountants.

 

## **Section 5.9            FurtherAssurances.**

## ** **

From time to timehereafter, execute and deliver, or cause to be executed and delivered, suchadditional instruments, certificates or documents, and will take all suchactions, as the Administrative Agent or any Lender may reasonably request, forthe purposes of implementing or effectuating the provisions of the CreditDocuments.  Upon the exercise by theAdministrative Agent or any Lender of any power, right, privileges or remedypursuant to the Credit Documents, which requires any consent, approval,recording, qualification or authorization of any Governmental Authority, theapplicable Borrower will execute and deliver, or will cause the execution anddelivery of, all applications, certifications, instruments and other documentsand papers that the Administrative Agent or any Lender may be required toobtain from such Borrower for such governmental consent, approval, recording,qualification or authorization.

 

## **Section 5.10         No Dividend Restrictions.**

## ** **

Neither the Company norany wholly-owned Material Subsidiary of the Company is a party to, nor will anywholly-owned Material Subsidiary of the Company become a party to, anyagreement prohibiting or restricting the payment of dividends.

 

# **ARTICLE VI**

# ** **

# **NEGATIVECOVENANTS**

# ** **

The Borrowers herebycovenant and agree that on the Closing Date, and thereafter for so long as thisCredit Agreement is in effect and until the Commitments have terminated, noNote remains outstanding and unpaid and the Borrower Obligations, together withinterest, Commitment Fee and all other amounts owing to the AdministrativeAgent or any Lender hereunder, are paid in full that:

 

## **Section 6.1            Limitationon Liens.**

## ** **

No Borrower will, norwill they permit any Subsidiary to, create, assume, incur or suffer to existany Lien on any asset now owned or hereafter acquired by it, except for thefollowing:

 

(a)           Liens existing on the date hereof,which are reflected in the balance sheet referred to in Section 3.4 hereof orthe footnotes thereto, and renewals, extensions and continuations thereof,provided that such renewals, extensions and continuations shall not

 

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(i) increase theIndebtedness secured thereby or (ii) extend the coverage thereof beyond theoriginal coverage of such Lien;

 

(b)           Liens for taxes, assessments or othergovernmental charges not yet delinquent or being contested in good faith and byappropriate proceedings; Liens in connection with workers’ compensation,unemployment insurance or other social security obligations; Liens securing theperformance of bids, tenders, contracts, surety and appeal bonds; Liens tosecure progress or partial payments and other Liens of like nature arising inthe ordinary course of business; mechanics’, workmen’s, materialmen’s or otherlike Liens arising in the ordinary course of business in respect of obligationswhich are not yet due or which are being contested in good faith; and otherLiens arising in the ordinary course of business and incidental to the conductof the business of the Company or such Subsidiary or to the ownership of itsproperties or assets, which were not incurred in connection with the borrowingof money and which do not materially detract front the value of the propertiesor assets of the Company or materially affect the use thereof in the operationof its business;

 

(c)           Liens in respect of judgments andawards to the extent that such judgments or awards are being contested in goodfaith and adequate insurance or appropriate reserves are maintained withrespect thereto on the books of the Company to the extent required by GAAP andso long as execution is not levied thereunder;

 

(d)           Liens on any property acquired afterthe date hereof which Liens existed when such property was acquired, andextensions and renewals of such Liens; provided that no such extension orrenewal shall increase the aggregate amount of Indebtedness secured thereby,nor add to the property subject to such Lien;

 

(e)           any Lien on any asset securingIndebtedness incurred or assumed for the purpose of financing all or any partof the cost of acquiring or improving such asset; provided that such Lienattaches to such asset concurrently with or within 120 days after theacquisition or completion of the improvement thereof;

 

(f)            other Liens incurred by the Companyin the ordinary course of its business, provided that the aggregate amount ofIndebtedness secured by all Liens permitted by this clause (f) shall not exceed$20,000,000 in the aggregate;

 

(g)           zoning restrictions, easements,licenses, reservations, provisions, covenants, conditions, waivers,restrictions on the use of property or minor irregularities of title which donot in the aggregate materially detract from the value of its property orassets or materially impair the use thereof in the operations, business orprospects of the Company or its Subsidiaries; and

 

(h)           Liens on the property or assets ofany Subsidiary in favor of the Company or any Subsidiary (other than any Lienson the property or assets of any Foreign Borrower in favor of any ForeignSubsidiary (other than another Foreign Borrower)).

 

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It being agreed thatnothing in this Section shall be deemed to directly or indirectly limit anylien that the Company or any of its Subsidiaries may grant to any other Personon any margin stock (within the meaning of Regulation U of the Board ofGovernors of the Federal Reserve System) owned thereby to theextent such limitation could result in the view that the Borrower Obligationshereunder are directly or indirectly secured by such margin stock.

 

## **Section 6.2            Dissolutions and Mergers.**

## ** **

Neither the Company norany Foreign Borrower shall merge into or consolidate with or into anycorporation or entity, unless, after giving effect to such merger orconsolidation (a) the Company or such Foreign Borrower, as applicable, is thesurviving corporation, and (b) no Default or Event of Default has occurred andis continuing or would result therefrom.

 

## **Section 6.3            Dispositionof Assets.**

## ** **

The Company shall not,and shall not permit any of its Subsidiaries to, convey, sell, assign, lease,transfer or dispose all or any portion of its assets (including accountsreceivable and Capital Stock of Subsidiaries) to any Person in a singletransaction or in a series of transactions, except for

 

(a)           any Sale in the ordinary course ofbusiness; and

 

(b)           so long as no Default or Event ofDefault has occurred and is continuing or would result therefrom, Sales ofassets with an aggregate book value not exceeding 10% of the consolidatedassets of the Company and its Subsidiaries (as determined in accordance withGAAP and this Section 6.3) as of the end of the most recently concluded FiscalYear; provided that, for purposes of this paragraph (b):

 

(i)            the consolidated assets of theCompany and its Subsidiaries as of the end of the most recently concludedFiscal Year shall exclude any interest of the Company in The TriZetto GroupInc., and any shares of Capital Stock of a Subsidiary that are subject to aSale shall be valued at the aggregate net book value of the assets of suchSubsidiary multiplied by a fraction of which the numerator is the aggregatenumber of shares of Capital Stock of such Subsidiary issued or disposed of insuch Sale and the denominator is the aggregate number of shares of CapitalStock of such Subsidiary outstanding immediately prior to such Sale; and

 

(ii)           any Sale (x) by any Subsidiary to theCompany of a wholly-owned Subsidiary and (y) any Sale of the Company’s interestin The TriZetto Group Inc. shall not be taken into account.

 

It being agreed thatnothing in this Section shall be deemed to directly or indirectly limit anysale by the Company or any of its Subsidiaries to any other Person of marginstock (within the meaning of Regulation U of the Boardof Governors of the Federal Reserve System) to the

 

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extent such limitation could result inthe view that the Borrower Obligations hereunder are directly or indirectlysecured by such margin stock.

 

## **Section 6.4            Conductof Business.**

## ** **

Neither the Company norany Foreign Borrower shall make or permit to be made any material change in thecharacter of its business as carried on at the Closing Date.

 

## **Section 6.5            Compliance with Federal ReserveRegulations.**

## ** **

Except for systematicstock repurchase programs from time to time conducted by the Company, neitherthe Company nor any Foreign Borrower shall use any part of the proceeds of anycredit extended under this Credit Agreement or the other Credit Documents topurchase or carry, or to reduce or retire any Indebtedness incurred to purchaseor carry, any margin stock (as defined in Regulation U of the Board ofGovernors of the Federal Reserve System) or to extend credit to any Person forthe purpose of purchasing or carrying any margin stock.

 

## **Section 6.6            FinancialCovenants.**

## ** **

The Company will notpermit (a) the Leverage Ratio to exceed at any time 2.50 to 1.00 or (b) theFixed Charge Coverage Ratio to be less than at any time 2.00 to 1.00.

 

## **Section 6.7            Subsidiary Indebtedness.**

## ** **

No Subsidiary will create,incur, assume, or suffer to exist any Indebtedness that, when totaled with allother Indebtedness of the Subsidiaries, is in excess of $250,000,000.

 

# **ARTICLE VII**

# ** **

# **EVENTSOF DEFAULT**

# ** **

## **Section 7.1            Eventsof Default.**

## ** **

An Event of Default shallexist upon the occurrence of any of the following specified events (each an “Eventof Default”):

 

(a)           Any Borrower shall fail to pay (i)any principal on any Note when due in accordance with the terms thereof orhereof; or any Borrower shall fail to reimburse the Issuing Lender for any LOCObligations when due in accordance with the terms hereof; or (ii) any intereston any Note or any fee or other amount payable hereunder when due in accordancewith the terms thereof or hereof, and such failure shall continue unremediedfor five (5) days; or

 

(b)           Any representation or warranty madeor deemed made herein or in any of the other Credit Documents or which iscontained in any certificate, document or

 

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financial or other statementfurnished at any time under or in connection with this Credit Agreement shallprove to have been incorrect, false or misleading in any material respect on oras of the date made or deemed made; or

 

(c)           (i) Any Borrower shall fail toperform, comply with or observe any term, covenant or agreement applicable toit contained in Section 5.1, 5.2, 5.4(a), Section 5.7 or Article VIhereof; or (ii) any Borrower shall default on any other covenant,contained in this Credit Agreement or the other Credit Documents or any otheragreement, document or instrument among any Borrower, the Administrative Agentand the Lenders or executed by any Borrower in favor of the AdministrativeAgent or the Lenders (other than as described in Sections 7.1(a) or 7.1(c)(i)above), and in the event such breach or failure to comply continues for thirty(30) days of its occurrence after the earlier of a Responsible Officer becomingaware of such default or the receipt by the Company of written notice of suchdefault from the Administrative Agent; or

 

(d)           The Company or any of itsSubsidiaries shall (i) default in any payment of principal of or intereston any Indebtedness of the Company or any of its Subsidiaries (other than theNotes) in a principal amount outstanding of at least $10,000,000 in theaggregate beyond the period of grace (not to exceed 30 days), if any,provided in the instrument or agreement under which such Indebtedness wascreated; or (ii) default in the observance or performance of any otheragreement or condition relating to any Indebtedness of the Company or any ofits Subsidiaries in a principal amount outstanding of at least $10,000,000 inthe aggregate or contained in any instrument or agreement evidencing, securingor relating thereto, or any other event shall occur or condition exist, in eachcase, the effect of which default or other event or condition is to cause, orto permit the holder or holders of such Indebtedness or beneficiary orbeneficiaries of such Indebtedness (or a trustee or agent on behalf of suchholder or holders or beneficiary or beneficiaries) to cause, with the giving ofnotice if required, such Indebtedness to become due prior to its statedmaturity; or

 

(e)           The Company or any MaterialSubsidiary shall (i) become insolvent or generally fail to pay, or admit inwriting its ability or unwillingness to pay, debts as they become due; (ii)apply for, consent to or acquiesce in the appointment of a trustee, receiver,sequestrator or other custodian for the Company or any Material Subsidiary orany substantial part of the property thereof, or make a general assignment forthe benefit of creditors; (iii) in the absence of such application, consent oracquiescence, permit or suffer to exist the appointment of a trustee, receiver,sequestrator or other custodian for the Company or any Material Subsidiary orfor a substantial part of the property thereof, and such trustee, receiver,sequestrator or other custodian shall not be discharged within 60 days; (iv)permit or suffer to exist the commencement of any bankruptcy, reorganization,debt arrangement or other case or proceeding under any bankruptcy or insolvencylaw, or any dissolution, winding up or liquidation proceeding, in respect ofthe Company or any Material Subsidiary and, if any such case or proceedingshall be consented to or acquiesced in by the Company or any MaterialSubsidiary or shall result in the entry of an order for relief or shall remainfor sixty (60) days undismissed; or (v) take any action authorizing, or infurtherance of, any of the foregoing; or

 

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(f)            Any judgment or order shall beentered against any Borrower or any of the Material Subsidiaries involving aliability (to the extent not covered by insurance) of $10,000,000 or more andsuch judgment or order shall not be paid or otherwise satisfied, and either (i)enforcement proceedings shall have been commenced by any creditor upon suchjudgment or order, or (ii) there shall be any period of ten(10) consecutive days during which a stay of enforcement of such judgmentor order, by reason of a pending appeal or otherwise, shall not be in effect;or

 

(g)           Any Plan shall fail to satisfy theminimum funding standard required for any plan year or part thereof or a waiverof such standard or extension of any amortization period is sought or grantedunder Section 412 of the Code, any Plan shall have had or is likely to have atrustee appointed to administer such Plan, any Plan is, shall have been or islikely to be terminated or the subject of termination proceedings under ERISA,any Plan shall have an Unfunded Current Liability, a contribution required tobe made to a Plan or a foreign pension plan has not been timely made or theCompany, any Subsidiary or any ERISA Affiliate has incurred or is likely toincur a liability to or on account of a Plan under Section 409, 502(i), 502(1),515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code (ii) there shall result from any suchevent or events the imposition of a Lien, the granting of a security interest,or a liability or a material risk of incurring a liability, and (iii) whichLien, security interest or liability, individually and/or in the aggregate, inthe opinion of the Administrative Agent or any Lender will cause a MaterialAdverse Change; or

 

(h)           There shall occur a Change ofControl.

 

## **Section 7.2            Acceleration;Remedies.**

## ** **

Upon the occurrence of anEvent of Default, then, and in any such event, (a) if such event is anEvent of Default specified in Section 7.1(e) above, automatically theCommitments shall immediately terminate and the Loans (with accrued interestthereon), and all other amounts under the Credit Documents (including withoutlimitation the maximum amount of all contingent liabilities under Letters ofCredit) shall immediately become due and payable, and (b) if such event isany other Event of Default, either or both of the following actions may betaken:  (i) with the writtenconsent of the Required Lenders, the Administrative Agent may, or upon thewritten request of the Required Lenders, the Administrative Agent shall, bynotice to the Borrowers declare the Commitments to be terminated forthwith,whereupon the Commitments shall immediately terminate; and (ii) with the writtenconsent of the Required Lenders,  the Administrative Agent may, or uponthe written request of the Required Lenders, the Administrative Agent shall, bynotice of default to the Borrowers, declare the Loans (with accrued interestthereon) and all other amounts owing under this Credit Agreement and the Notesto be due and payable forthwith and direct the Borrowers to pay to theAdministrative Agent cash collateral as security for the LOC Obligations forsubsequent drawings under then outstanding Letters of Credit an amount equal tothe maximum amount of which may be drawn under Letters of Credit thenoutstanding, whereupon the same shall immediately become due and payable.

 

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# **ARTICLEVIII**

# ** **

# **THE ADMINISTRATIVE AGENT**

# ** **

## **Section 8.1            Appointment.**

## ** **

Each Lender herebyirrevocably designates and appoints Wachovia as the Administrative Agent ofsuch Lender under this Credit Agreement, and each such Lender irrevocablyauthorizes Wachovia, as the Administrative Agent for such Lender, to take suchaction on its behalf under the provisions of this Credit Agreement and toexercise such powers and perform such duties as are expressly delegated to theAdministrative Agent by the terms of this Credit Agreement, together with suchother powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary elsewhere in thisCredit Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expresslyset forth herein, or any fiduciary relationship with any Lender, and no impliedcovenants, functions, responsibilities, duties, obligations or liabilitiesshall be read into this Credit Agreement or otherwise exist against theAdministrative Agent.

 

## **Section 8.2            Delegationof Duties.**

## ** **

The Administrative Agentmay execute any of its duties under this Credit Agreement by or through agentsor attorneys-in-fact and shall be entitled to advice of counsel concerning allmatters pertaining to such duties.  TheAdministrative Agent shall not be responsible for the negligence or misconductof any agents or attorneys-in-fact selected by it with reasonable care.  Without limiting the foregoing, theAdministrative Agent may appoint one of its affiliates as its agent to performits the functions of the Administrative Agent hereunder relating to theadvancing of funds to the Borrowers and distribution of funds to the Lendersand to perform such other related functions of the Administrative Agenthereunder as are reasonably incidental to such functions.

 

## **Section 8.3            Exculpatory Provisions.**

## ** **

Neither theAdministrative Agent nor any of its officers, directors, employees, agents,attorneys-in-fact or affiliates shall be (i) liable for any actionlawfully taken or omitted to be taken by it or such Person under or inconnection with this Credit Agreement (except for its or such Person’s owngross negligence or willful misconduct) or (ii) responsible in any mannerto any of the Lenders for any recitals, statements, representations orwarranties made by the Borrowers or any officer thereof contained in thisCredit Agreement or in any certificate, report, statement or other documentreferred to or provided for in, or received by the Administrative Agent underor in connection with, this Credit Agreement or for the value, validity,effectiveness, genuineness, enforceability or sufficiency of any of the CreditDocuments or for any failure of any of the Borrowers to perform its obligationshereunder or thereunder.  TheAdministrative Agent shall not be under any obligation to any Lender toascertain or to inquire as to the observance or performance by the Borrowers ofany of the agreements contained in, or

 

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conditions of, thisCredit Agreement, or to inspect the properties, books or records of theBorrowers.

 

## **Section 8.4            Reliance by the AdministrativeAgent.**

## ** **

The Administrative Agentshall be entitled to rely, and shall be fully protected in relying, upon anyCredit Document, writing, resolution, notice, consent, certificate, affidavit,letter, cablegram, telegram, telecopy, telex or teletype message, statement,order or other document or conversation believed by it in good faith to begenuine and correct and to have been signed, sent or made by the proper Personor Persons and upon advice and statements of legal counsel (including, withoutlimitation, counsel to the Borrowers), independent accountants and otherexperts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as theowner thereof for all purposes unless (a) a written notice of assignment,negotiation or transfer thereof shall have been filed with the AdministrativeAgent and (b) the Administrative Agent shall have received the written agreementof such assignee to be bound hereby as fully and to the same extent as if suchassignee were an original Lender party hereto, in each case in formsatisfactory to the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusingto take any action under this Credit Agreement unless it shall first receivesuch advice or concurrence of the Required Lenders or all the Lenders as may berequired under this Credit Agreement or it shall first be indemnified to itssatisfaction by the Lenders against any and all liability and expense which maybe incurred by it by reason of taking or continuing to take any suchaction.  The Administrative Agent shall,subject to Section 8.3, be fully protected in acting, or in refraining fromacting, under any of the Credit Documents in accordance with a request of theRequired Lenders or all of the Lenders, as may be required under this CreditAgreement, and such request and any action taken or failure to act pursuantthereto shall be binding upon all the Lenders and all future holders of theNotes.

 

## **Section 8.5            Noticeof Default.**

## ** **

The Administrative Agentshall not be deemed to have knowledge or notice of the occurrence of anyDefault or Event of Default hereunder unless the Administrative Agent has receivednotice from a Lender or a Borrower referring to this Credit Agreement,describing such Default or Event of Default and stating that such notice is a“notice of default”.  In the event thatthe Administrative Agent receives such a notice, the Administrative Agent shallgive prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to suchDefault or Event of Default as shall be reasonably directed by the RequiredLenders, or all Lenders, as applicable; provided, however, thatunless and until the Administrative Agent shall have received such directions,the Administrative Agent may (but shall not be obligated to) take such action,or refrain from taking such action, with respect to such Default or Event ofDefault as it shall deem advisable in the best interests of the Lenders exceptto the extent that this Credit Agreement expressly requires that such action betaken, or not taken, only with the consent or upon the authorization of theRequired Lenders, or all of the Lenders, as the case may be.

 

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## **Section 8.6            Non-Reliance on theAdministrative Agent and Other Lenders.**

## ** **

Each Lender expresslyacknowledges that neither the Administrative Agent nor any of its officers,directors, employees, agents, attorneys-in-fact or affiliates has made anyrepresentation or warranty to it and that no act by the Administrative Agenthereinafter taken, including any review of the affairs of the Borrowers, shallbe deemed to constitute any representation or warranty by the AdministrativeAgent to any Lender.  Each Lenderrepresents to the Administrative Agent that it has, independently and withoutreliance upon the Administrative Agent or any other Lender, and based on suchdocuments and information as it has deemed appropriate, made its own appraisalof and investigation into the business, operations, property, financial andother condition and creditworthiness of the Borrowers and made its own decisionto make its Loans hereunder and enter into this Credit Agreement.  Each Lender also represents that it will,independently and without reliance upon the Administrative Agent or any otherLender, and based on such documents and information as it shall deemappropriate at the time, continue to make its own credit analysis, appraisalsand decisions in taking or not taking action under this Credit Agreement, andto make such investigation as it deems necessary to inform itself as to thebusiness, operations, property, financial and other condition andcreditworthiness of the Borrowers. Except for notices, reports and other documents expressly required to befurnished to the Lenders by the Administrative Agent hereunder, theAdministrative Agent shall not have any duty or responsibility to provide anyLender with any credit or other information concerning the business,operations, property, condition (financial or otherwise), prospects orcreditworthiness of the Borrowers which may come into the possession of theAdministrative Agent or any of its officers, directors, employees, agents,attorneys-in-fact or affiliates.

 

## **Section 8.7            Indemnification.**

## ** **

The Lenders agree toindemnify the Administrative Agent in its capacity as such hereunder (to theextent not reimbursed by the applicable Borrower and without limiting theobligation of the Borrowers to do so), ratably according to their respectiveCommitment Percentages in effect on the date on which indemnification is soughtunder this Section, from and against any and all liabilities, obligations,losses, damages, penalties, actions, judgments, suits, costs, expenses ordisbursements of any kind whatsoever which may at any time (including, withoutlimitation, at any time following the payment of the Notes) be imposed on,incurred by or asserted against the Administrative Agent in any way relating toor arising out of any Credit Document or any documents contemplated by orreferred to herein or therein or the transactions contemplated hereby orthereby or any action taken or omitted by the Administrative Agent under or inconnection with any of the foregoing; provided, however, that noLender shall be liable for the payment of any portion of such liabilities,obligations, losses, damages, penalties, actions, judgments, suits, costs,expenses or disbursements to the extent resulting from the AdministrativeAgent’s gross negligence or willful misconduct, as determined by a court ofcompetent jurisdiction.  The agreementsin this Section 8.7 shall survive the termination of this Credit Agreementand payment of the Notes and all other amounts payable hereunder.

 

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## **Section 8.8            Administrative Agent in itsIndividual Capacity.**

## ** **

The Administrative Agentand its affiliates may make loans to, accept deposits from and generally engagein any kind of business with the Borrowers as though the Administrative Agentwas not an Administrative Agent hereunder. With respect to its Loans made or renewed by it and any Note issued toit, the Administrative Agent shall have the same rights and powers under thisCredit Agreement as any Lender and may exercise the same as though it were notthe Administrative Agent, and the terms “Lender” and “Lenders” shall includethe Administrative Agent in its individual capacity.

 

## **Section8.9            Successor AdministrativeAgent.**

## ** **

The Administrative Agentmay resign as Administrative Agent upon 30 days’ prior notice to theBorrowers and the Lenders.  If theAdministrative Agent shall resign as an Administrative Agent under this CreditAgreement and the Notes, then the Required Lenders shall appoint from among theLenders a successor agent for the Lenders, which successor agent shall beapproved by the Company with such approval not to be unreasonably withheld(provided, however if an Event of Default shall exist at such time, no approvalof the Company shall be required hereunder), whereupon such successor agentshall succeed to the rights, powers and duties of the Administrative Agent, andthe term “Administrative Agent”, shall mean such successor Administrative Agenteffective upon such appointment and approval, and the former AdministrativeAgent’s rights, powers and duties as Administrative Agent shall be terminated,without any other or further act or deed on the part of such former AdministrativeAgent or any of the parties to this Credit Agreement or any holders of theNotes.  After any retiringAdministrative Agent’s resignation as Administrative Agent, the provisions ofthis Section 8.9 shall inure to its benefit as to any actions taken or omittedto be taken by it while it was Administrative Agent under this CreditAgreement.

 

## **Section 8.10         Natureof Duties.**

## ** **

Except as otherwise expressly stated herein, any agent(other than the Administrative Agent) or arranger listed from time to time on thecover page of this Credit Agreement shall have no obligations, responsibilitiesor duties under this Credit Agreement or under any other Credit Document otherthan obligations, responsibilities and duties applicable to all Lenders intheir capacity as Lenders; provided, however, that such agents and arrangersshall be entitled to the same rights, protections, exculpations andindemnifications granted to the Administrative Agent under thisArticle VIII in their capacity as an agent or arranger.

 

**Section 8.11         OtherAgents; Arrangers.**

 

Except as otherwiseexpressly stated herein, any agent (other than the Administrative Agent) orarranger listed from time to time on the cover page of this Credit Agreementshall have no obligations, responsibilities or duties under this CreditAgreement or under any other Credit Document other than obligations,responsibilities and duties applicable to all Lenders in their capacity asLenders; provided, however, that such agents and arrangers shall be entitled tothe

 

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same rights, protections,exculpations and indemnifications granted to the Administrative Agent underthis Article VIII in their capacity as an agent or arranger.

 

# **ARTICLE IX**

# ** **

# **MISCELLANEOUS**

# ** **

## **Section 9.1            Amendmentsand Waivers.**

## ** **

Neither this CreditAgreement nor any of the other Credit Documents, nor any terms hereof orthereof may be amended, supplemented, waived or modified except in accordancewith the provisions of this Section 9.1. The Required Lenders may, or, with the written consent of the RequiredLenders, the Administrative Agent may, from time to time, (a) enter intowith the Borrowers written amendments, supplements or modifications hereto andto the other Credit Documents for the purpose of adding any provisions to thisCredit Agreement or the other Credit Documents or changing in any manner therights of the Lenders or of the Borrowers hereunder or thereunder or(b) waive, on such terms and conditions as the Required Lenders mayspecify in such instrument, any of the requirements of this Credit Agreement orthe other Credit Documents or any Default or Event of Default and itsconsequences; provided, however, that no such amendment, waiver,supplement, modification or release shall:

 

(i)            reduce the amount or extend thescheduled date of maturity of any Loan or Note or any installment thereon, orreduce the stated rate of any interest or fee payable hereunder (other thaninterest at the increased post-default rate) or extend the scheduled date ofany payment thereof or increase the amount or extend the expiration date of anyLender’s Commitment, in each case without the written consent of each Lenderdirectly affected thereby, or

 

(ii)           amend, modify or waive any provisionof this Section 9.1 or reduce the percentage specified in the definitionof Required Lenders, without the written consent of all the Lenders, or

 

(iii)          amend, modify or waive any provisionof Article VIII without the written consent of the then AdministrativeAgent, or

 

(iv)          amend, modify or waive any provisionof the Credit Documents requiring consent, approval or request of the RequiredLenders or all Lenders, without the written consent of such Required Lenders orLenders as appropriate; or

 

(v)           amend, modify or waive any provisionof the Credit Documents affecting the rights or duties of the AdministrativeAgent, the Issuing Lender or the Swingline Lender under any Credit Documentwithout the written consent of

 

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the Administrative Agent,the Issuing Lender and/or the Swingline Lender, as applicable, in addition tothe Lenders required hereinabove to take such action;

 

(vi)          amend or modify the definition ofBorrower Obligations to delete or exclude any obligation or liability describedtherein without the written consent of each Lender and each Hedging AgreementProvider directly affected thereby;

 

(vii)         amend, modify or waive any provision ofSection 2.11 in a manner that would alter the pro rata share of paymentsrequired thereby without the written consent of each Lender directly affectedthereby.

 

Any such waiver,amendment, supplement or modification and any such release shall apply equallyto each of the Lenders and shall be binding upon the Borrowers, the Lenders,the Administrative Agent and all future holders of the Notes.  In the case of any waiver, the Borrowers,the Lenders and the Administrative Agent shall be restored to their formerposition and rights hereunder and under the outstanding Loans and Notes andother Credit Documents, and any Default or Event of Default waived shall bedeemed to be cured and not continuing; but no such waiver shall extend to anysubsequent or other Default or Event of Default, or impair any right consequentthereon.

 

Notwithstanding any ofthe foregoing to the contrary, the consent of the Borrowers shall not berequired for any amendment, modification or waiver of the provisions ofArticle VIII (other than the provisions of Section 8.9).  In addition, the Borrowers and the Lendershereby authorize the Administrative Agent to modify this Credit Agreement byunilaterally amending or supplementing Schedule 2.1(a) from time totime in the manner requested by the Borrowers, the Administrative Agent or anyLender in order to reflect any assignments or transfers of the Loans asprovided for hereunder; provided, however, that theAdministrative Agent shall promptly deliver a copy of any such modification tothe Borrowers and each Lender.

 

Notwithstanding the factthat the consent of all the Lenders is required in certain circumstances as setforth above, (x) each Lender is entitled to vote as such Lender sees fit on anybankruptcy reorganization plan that affects the Loans, and each Lenderacknowledges that the provisions of Section 1126(c) of the Bankruptcy Codesupersedes the unanimous consent provisions set forth herein and (y) theRequired Lenders may consent to allow a Borrower to use cash collateral in thecontext of a bankruptcy or insolvency proceeding.

 

## **Section 9.2            Notices.**

## ** **

Except as otherwiseprovided in Article II, all notices, requests and demands to or upon therespective parties hereto to be effective shall be in writing (including bytelecopy), and, unless otherwise expressly provided herein, shall be deemed tohave been duly given or made (a) when delivered by hand, (b) whentransmitted via telecopy (or other facsimile device) to the number set outherein, (c) the Business Day immediately following the day on which thesame has been delivered prepaid to a reputable national overnight air courierservice, or (d) the third Business Day following the day on which the sameis sent by certified or registered mail, postage prepaid, in each case,addressed as follows in the case of the Borrowers and the Administrative

 

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Agent, and as set forthon Schedule 9.2 in the case of the Lenders, or to such otheraddress as may be hereafter notified by the respective parties hereto and anyfuture holders of the Notes:

 
| The Company        | IMS Health Incorporated                                       |
|--------------------|---------------------------------------------------------------|
| and the other      | 1499 Post Road                                                |
| Borrowers:         | Fairfield, Connecticut  06284                                 |
|               | Attention: Jeff Ford,  Treasurer                              |
|               | Telecopier: (203)  319-4533                                   |
|               | Telephone: (203)  319-4527                                    |
|               |                                                          |
| The Administrative | Wachovia Bank, National  Association, as Administrative Agent |
| Agent:             | Charlotte Plaza                                               |
|               | 201 South College  Street, CP-8                               |
|               | Charlotte,  North Carolina 28288-0680                    |
|               | Attention: Syndication  Agency Services                       |
|               | Telecopier: (704)  383-0288                                   |
|               | Telephone: (704)  383-6591                                    |
|               |                                                          |
|               | with a copy to:                                               |
|               |                                                          |
|               | Wachovia Bank, National  Association                          |
|               | One Wachovia Center,  DC-5                                    |
|               | Charlotte,  North Carolina 28288-0737                    |
|               | Attention: Agency  Management                                 |
|               | Telecopier: (704)  383-7611                                   |
|               | Telephone: (704)  715-7708                                    |
|               |                                                          |
|               | with respect to Foreign  Currency Loans:                      |
|               |                                                          |
|               | Wachovia Bank, National  Association                          |
|               | London Branch                                                 |
|               | 3 Bishopsgate                                                 |
|               | London, England EC2N3AB                                       |
|               | Attention:                                                    | Maureen Hart |
|               | Facsimile:                                                    | 011 44 207 929 4645 |
|               |                                                          |
|               | with a copy to:                                               |
|               |                                                          |
|               | Wachovia Bank, National  Association                          |
|               | Charlotte Plaza                                               |
|               | 201 South College  Street, CP-8                               |
|               | Charlotte,  North Carolina 28288-0680                    |
|               | Attention: Syndication  Agency Services                       |
|               | Telecopier: (704)  383-0288                                   |
|               | Telephone: (704)  383-6591                                    |

 

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## **Section 9.3            No Waiver; Cumulative Remedies.**

## ** **

No failure to exerciseand no delay in exercising, on the part of the Administrative Agent or anyLender, any right, remedy, power or privilege hereunder shall operate as awaiver thereof; nor shall any single or partial exercise of any right, remedy,power or privilege hereunder preclude any other or further exercise thereof orthe exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privilegesherein provided are cumulative and not exclusive of any rights, remedies,powers and privileges provided by law.

 

## **Section 9.4            Payment of Expenses and Taxes.**

## ** **

The Borrowers jointly andseverally agree (a) to pay or reimburse the Administrative Agent and theArranger for all their reasonable and documented out-of-pocket costs andexpenses incurred in connection with the development, preparation, negotiation,printing and execution of, and any amendment, supplement or modification to,this Credit Agreement and the other Credit Documents and any other documentsprepared in connection herewith or therewith, and the consummation andadministration of the transactions contemplated hereby and thereby, togetherwith the reasonable fees and disbursements of counsel to the AdministrativeAgent and the Arranger, (b) to pay or reimburse each Lender and theAdministrative Agent for all its costs and expenses incurred in connection withthe enforcement or preservation of any rights under this Credit Agreement andthe other Credit Documents, including, without limitation, the reasonable feesand disbursements of counsel to the Administrative Agent and to the Lenders,and (c) on demand, to pay, indemnify, and hold each Lender and theAdministrative Agent harmless from, any and all recording and filing fees andany and all liabilities with respect to, or resulting from any delay in paying,stamp, excise and other similar taxes, if any, which may be payable ordetermined to be payable in connection with the execution and delivery of, orconsummation or administration of any of the transactions contemplated by, orany amendment, supplement or modification of, or any waiver or consent under orin respect of, the Credit Documents and any such other documents, and (d) topay, indemnify, and hold each Lender and the Administrative Agent and theirAffiliates harmless from and against, any and all other liabilities,obligations, losses, damages, penalties, actions, judgments, suits, costs,expenses or disbursements of any kind or nature whatsoever with respect to theexecution, delivery, enforcement, performance and administration of the CreditDocuments and any such other documents and the use, or proposed use, ofproceeds of the Loans (all of the foregoing, collectively, the “indemnifiedliabilities”); provided, however, that the Borrowers shallnot have any obligation hereunder to any Agent or any Lender or any Affiliatethereof with respect to indemnified liabilities to the extent (i) arising fromthe gross negligence or willful misconduct of the Administrative Agent or anysuch Lender or any such Affiliate, as determined by a court of competentjurisdiction or (ii) relating to disputes among any Lender or Affiliate thereofand the Administrative Agent or one or more other Lender or Affiliate thereofunless such dispute is related to this Credit Agreement or the Extensions ofCredit hereunder.  No Borrower shall berequired to indemnify any Indemnified Party for any amount paid or payable toany Indemnified Party in the compromise or settlement of any action, proceedingor investigation without the prior written consent of the Company, whichconsent shall not be unreasonably withheld. Promptly after receipt by anIndemnified Party of notice of its involvement in any action, proceeding orinvestigation, such Indemnified Party shall, if a claim for indemnification in

 

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respectthereof is to be made against the Company under this Credit Agreement, promptlynotify the Company in writing of such involvement.  Failure by the Indemnified Party to so notify the Company shallnot relieve the Company from the obligation to indemnify the Indemnified Partyunder this Credit Agreement except to the extent that the Company suffersactual prejudice as a result of such failure, and shall not relieve the Companyfrom its obligation to provide reimbursement and contribution to theIndemnified Party.** **Itis acknowledged and agreed that each Indemnified Party shall cooperate with theCompany in good faith to coordinate a mutual defense strategy and to enter intojoint defense agreements and will use commercially reasonable efforts tominimize the costs thereof including, without limitation, (i) the delivery ofperiodic updates with respect to legal and other expenses incurred, (ii)  limiting the engagement of legal counsel toone law firm at any one time (excluding local counsel which may be engaged asdeemed necessary by the Indemnified Party) and (iii) the taking of such othermeasures in connection therewith as may be reasonably requested by the Company.** **The agreements in thisSection 9.4 shall survive repayment of the Loans and the Borrower Obligations.

 

## **Section 9.5            Successors and Assigns;Participations; Purchasing Lenders.**

## ** **

(a)           This Credit Agreement shall bebinding upon and inure to the benefit of the Borrowers, the Lenders, theAdministrative Agent, all future holders of the Notes and their respective successorsand assigns, except that the Borrowers may not assign or transfer any of theirrights or obligations under this Credit Agreement or the other Credit Documentswithout the prior written consent of each Lender; except to the extent any suchassignment results from the consummation of a merger or consolidation permittedpursuant to Section 6.2 of this Credit Agreement.

 

(b)           Any Lender may, in the ordinarycourse of its commercial banking business and in accordance with applicablelaw, at any time sell to one or more banks or other entities (“Participants”)participating interests in any Loan owing to such Lender, any Note held by suchLender, any Commitment of such Lender, or any other interest of such Lenderhereunder.  In the event of any suchsale by a Lender of participating interests to a Participant, such Lender’sobligations under this Credit Agreement to the other parties to this CreditAgreement shall remain unchanged, such Lender shall remain solely responsiblefor the performance thereof, such Lender shall remain the holder of any suchNote for all purposes under this Credit Agreement, and the Borrowers and theAdministrative Agent shall continue to deal solely and directly with suchLender in connection with such Lender’s rights and obligations under thisCredit Agreement.  No Lender shalltransfer or grant any participation under which the Participant shall haverights to approve any amendment to or waiver of this Credit Agreement or anyother Credit Document except to the extent such amendment or waiver would(i) extend the scheduled maturity of any Loan or Note or any installmentthereon in which such Participant is participating, or reduce the stated rateor extend the time of payment of interest or fees thereon (except in connectionwith a waiver of interest at the increased post-default rate) 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 Default or Event of Default shall not constitute a change inthe terms of such participation, and that an increase in any Commitment or Loanshall be permitted

 

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without consent of anyparticipant if the Participant’s participation is not increased as a resultthereof) or (ii) consent to the assignment or transfer by the Borrowers of anyof their respective rights and obligations under this Credit Agreement.  In the case of any such participation, theParticipant shall not have any rights under this Credit Agreement or any of theother Credit Documents (the Participant’s rights against such Lender in respectof such participation to be those set forth in the agreement executed by suchLender in favor of the Participant relating thereto) and all amounts payable bythe Borrowers hereunder shall be determined as if such Lender had not sold suchparticipation; provided that each Participant shall be entitled to thebenefits of Sections 2.16, 2.17 and 2.18 with respect to its participation inthe Commitments and the Loans outstanding from time to time; providedfurther,that no Participant shall be entitled to receive any greater amount pursuant tosuch Sections than the transferor Lender would have been entitled to receive inrespect of the amount of the participation transferred by such transferorLender to such Participant had no such transfer occurred.

 

(c)           Any Lender may, in the ordinarycourse of its commercial banking business and in accordance with applicablelaw, at any time, sell or assign to any Lender or any Affiliate or Related Fundthereof and with the consent of the Administrative Agent and, so long as noEvent of Default has occurred and is continuing, the Borrowers (in each case,which consent shall not be unreasonably withheld or delayed), to one or moreadditional banks or financial institutions or entities (“Purchasing Lenders”),all or any part of its rights and obligations under this Credit Agreement andthe Notes in minimum amounts of $5,000,000 with respect to its RevolvingCommitment and its Revolving Loans (or, if less, the entire amount of suchLender’s Revolving Commitment and Revolving Loans), pursuant to a CommitmentTransfer Supplement, executed by such Purchasing Lender and such transferorLender (and, in the case of a Purchasing Lender that is not then a Lender or anaffiliate or Related Fund thereof, the Administrative Agent and, so long as noEvent of Default has occurred and is continuing, the Company), and delivered tothe Administrative Agent for its acceptance and recording in the Register; provided,however, that any sale or assignment to an existing Lender, or Affiliateor Related Fund thereof, shall not require the consent of the AdministrativeAgent or the Borrowers nor shall any such sale or assignment be subject to theminimum assignment amounts specified herein. Upon such execution, delivery, acceptance and recording, from and afterthe Transfer Effective Date specified in such Commitment Transfer Supplement,(x) the Purchasing Lender thereunder shall be a party hereto and, to the extentprovided in such Commitment Transfer Supplement, have the rights andobligations of a Lender hereunder with a Commitment as set forth therein, and(y) the transferor Lender thereunder shall, to the extent provided in suchCommitment Transfer Supplement, be released from its obligations under thisCredit Agreement (and, in the case of a Commitment Transfer Supplement coveringall or the remaining portion of a transferor Lender’s rights and obligationsunder this Credit Agreement, such transferor Lender shall cease to be a partyhereto).  Such Commitment TransferSupplement shall be deemed to amend this Credit Agreement to the extent, andonly to the extent, necessary to reflect the addition of such Purchasing Lenderand the resulting adjustment of Commitment Percentages arising from thepurchase by such Purchasing Lender of all or a portion of the rights andobligations of such transferor Lender under this Credit

 

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Agreement and theNotes.  On or prior to the TransferEffective Date specified in such Commitment Transfer Supplement, the Borrowers,at their own expense, shall execute and deliver to the Administrative Agent inexchange for the Notes delivered to the Administrative Agent pursuant to suchCommitment Transfer Supplement new Notes to the order of such Purchasing Lenderin an amount equal to the Commitment assumed by it pursuant to such CommitmentTransfer Supplement and, unless the transferor Lender has not retained aCommitment hereunder, new Notes to the order of the transferor Lender in anamount equal to the Commitment retained by it hereunder.  Such new Notes shall be dated the ClosingDate and shall otherwise be in the form of the Notes replaced thereby.

 

(d)           The Administrative Agent shallmaintain at its address referred to in Section 9.2 a copy of eachCommitment Transfer Supplement delivered to it and a register (the “Register”)for the recordation of the names and addresses of the Lenders and the Commitmentof, and principal amount of the Loans owing to, each Lender from time totime.  The entries in the Register shallbe conclusive, in the absence of manifest error, and the Borrowers, theAdministrative Agent and the Lenders may treat each Person whose name isrecorded in the Register as the owner of the Loan recorded therein for allpurposes of this Credit Agreement.  TheRegister shall be available for inspection by the Borrowers or any Lender atany reasonable time and from time to time upon reasonable prior notice.

 

(e)           Upon its receipt of a duly executedCommitment Transfer Supplement, together with payment to the AdministrativeAgent by the transferor Lender or the Purchasing Lender, as agreed betweenthem, of a registration and processing fee of $3,500 for each Purchasing Lender(other than an Affiliate of such Lender or a Related Fund) listed in suchCommitment Transfer Supplement and the Notes subject to such CommitmentTransfer Supplement, the Administrative Agent shall (i) accept such CommitmentTransfer Supplement, (ii) record the information contained therein in theRegister and****(iii)** **give prompt notice of such acceptanceand recordation to the Lenders and the Borrowers.

 

(f)            The Borrowers authorize each Lenderto disclose to any Participant or Purchasing Lender (each, a “Transferee”)and any prospective Transferee any and all financial information in suchLender’s possession concerning the Borrowers and its Affiliates which has beendelivered to such Lender by or on behalf of the Borrowers pursuant to thisCredit Agreement or which has been delivered to such Lender by or on behalf ofthe Borrowers in connection with such Lender’s credit evaluation of theBorrowers and its Affiliates prior to becoming a party to this CreditAgreement, in each case subject to Section 9.15.

 

(g)           At the time of each assignmentpursuant to this Section 9.5 to a Person which is not already a Lenderhereunder and which is not a United States person (as such term is definedin Section 7701(a)(30) of the Code) for Federal income tax purposes, therespective assignee Lender shall provide to the Borrowers and theAdministrative Agent the appropriate Internal Revenue Service Forms describedin Section 2.19.

 

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(h)           Nothing herein shall prohibit anyLender from pledging or assigning any of its rights under this Credit Agreement(including, without limitation, any right to payment of principal and interestunder any Note) to any Federal Reserve Bank in accordance with applicable laws.

 

## **Section 9.6            Adjustments;Set-off.**

## ** **

(a)           Each Lender agrees that if any Lender(a “benefited Lender”) shall at any time receive any payment of all orpart of its Loans, or interest thereon, or receive any collateral in respectthereof (whether voluntarily or involuntarily, by set-off, pursuant to eventsor proceedings of the nature referred to in Section 7.1(e), or otherwise)in a greater proportion than any such payment to or collateral received by anyother Lender, if any, in respect of such other Lender’s Loans, or interestthereon, such benefited Lender shall purchase for cash from the other Lenders aparticipating interest in such portion of each such other Lender’s Loan, orshall provide such other Lenders with the benefits of any such collateral, orthe proceeds thereof, as shall be necessary to cause such benefited Lender toshare the excess payment or benefits of such collateral or proceeds ratablywith each of the Lenders; provided, however, that if all or anyportion of such excess payment or benefits is thereafter recovered from suchbenefited Lender, such purchase shall be rescinded, and the purchase price andbenefits returned, to the extent of such recovery, but without interest.  The Borrowers agree that each Lender sopurchasing a portion of another Lender’s Loans may exercise all rights ofpayment (including, without limitation, rights of set-off) with respect to suchportion as fully as if such Lender were the direct holder of such portion.

 

(b)           The Borrowers hereby grant to theLenders, a lien, security interest, and right of setoff as security for allliabilities and obligations to the Lenders, whether now existing or hereafterarising upon and against all deposits, credits, collateral, and property, nowor hereafter in the possession, custody, safekeeping or control of the Lendersor any entity under the control of the parent company of any of the Lenders,and their successors and assigns or in transit to any of them.  At any time after an Event of Default,without demand or notice, the Lenders may set off the same or any part thereofand apply the same to any liability or obligation of the Borrowers and anyguarantor even though unmatured and regardless of the adequacy of any othercollateral securing the Loans.  ANY ANDALL RIGHTS TO REQUIRE THE LENDERS TO EXERCISE THEIR RIGHTS OR REMEDIES WITHRESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS, PRIOR TO EXERCISINGTHEIR RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS, OR OTHERPROPERTY OF THE BORROWERS, ARE HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLYWAIVED.

 

## **Section 9.7            Table of Contents and SectionHeadings.**

## ** **

The table of contents andthe Section and subsection headings herein are intended for convenience onlyand shall be ignored in construing this Credit Agreement.

 

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## **Section 9.8            Counterparts.**

## ** **

This Credit Agreement maybe executed by one or more of the parties to this Credit Agreement on anynumber of separate counterparts, and all of said counterparts taken togethershall be deemed to constitute one and the same instrument.  A set of the copies of this Credit Agreementsigned by all the parties shall be lodged with the Company and theAdministrative Agent.

 

## **Section 9.9            Effectiveness.**

## ** **

This Credit Agreementshall become effective on the date on which all of the parties have signed acopy hereof (whether the same or different copies) and shall have delivered thesame to the Administrative Agent pursuant to Section 9.2 or, in thecase of the Lenders, shall have given to the Administrative Agent written,telecopied or telex notice (actually received) at such office that the same hasbeen signed and mailed to it.

 

## **Section 9.10         Severability.**

## ** **

Any provision of thisCredit Agreement which is prohibited or unenforceable in any jurisdictionshall, as to such jurisdiction, be ineffective to the extent of suchprohibition or unenforceability without invalidating the remaining provisionshereof, and any such prohibition or unenforceability in any jurisdiction shallnot invalidate or render unenforceable such provision in any otherjurisdiction.

 

## **Section 9.11         Integration.**

## ** **

This Credit Agreement andthe other Credit Documents represent the agreement of the Borrowers, theAdministrative Agent and the Lenders with respect to the subject matter hereof,and there are no promises, undertakings, representations or warranties by theAdministrative Agent, the Borrowers or any Lender relative to the subjectmatter hereof not expressly set forth or referred to herein or therein.

 

## **Section 9.12         GoverningLaw.**

## ** **

This Credit Agreementand, unless otherwise specified therein, each other Credit Document and therights and obligations of the parties under this Credit Agreement and suchother Credit Documents shall be governed by, and construed and interpreted inaccordance with, the laws of the State of New York applicable to contractsmade and to be performed entirely within such State.

 

## **Section 9.13         Consent to Jurisdiction and Serviceof Process.**

## ** **

Each Borrower consents,for itself and in connection with its properties to the non-exclusivejurisdiction of the United States District Court for the Southern District ofNew York and of any New York State court sitting in New York City for purposesof all legal

 

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proceedings arising outof the Credit Agreement, any Note or any of the other Credit Documents.  The Borrowers irrevocably agree that allservice of process in any such proceedings in any such court may be effected bymailing a copy thereof by registered or certified mail (or any substantiallysimilar form of mail), postage prepaid, return receipt requested, to it at itsaddress set forth in Section 9.2 or at such other address of which theAdministrative Agent shall have been notified pursuant thereto, such servicebeing hereby acknowledged by the Borrowers to be effective and binding serviceto the fullest extent permitted by applicable law.  The Borrowers, the Administrative Agent and the Lendersirrevocably waive, to the fullest extent permitted by applicable law, anyobjection, including, without limitation, any objection to the laying of venueor based on the grounds of forum non conveniens which it may now or hereafterhave to the bringing of any such action or proceeding in any such jurisdiction.  Nothing herein shall affect the right toserve process in any other manner permitted by law or shall limit the right ofany Lender to bring proceedings against the Borrowers in the court of any otherjurisdiction.

 

## **Section 9.14         Confidentiality.**

## ** **

The Administrative Agentand each of the Lenders agrees that it will use its best efforts not todisclose without the prior consent of the Borrowers (other than to itsemployees, affiliates, auditors or counsel or to another Lender) anyinformation (the “Information”) with respect to the Borrowers and theCompany’s Subsidiaries which is furnished pursuant to this Credit Agreement,any other Credit Document or any documents contemplated by or referred toherein or therein and which is designated by the Borrowers to the Lenders inwriting as confidential or as to which it is otherwise reasonably clear suchinformation is not public, except that any Lender may disclose any suchInformation (a) as has become generally available to the public other thanby a breach of this Section 9.14, (b) as may be required orappropriate in any report, statement or testimony submitted to any municipal,state or federal regulatory body having or claiming to have jurisdiction oversuch Lender or to the Federal Reserve Board or the Federal Deposit InsuranceCorporation or the Office of the Comptroller of the Currency or the NationalAssociation of Insurance Commissioners or similar organizations (whether in theUnited States or elsewhere) or their successors, (c) as may be requiredor appropriate in response to any summons or subpoena or any law, order,regulation or ruling applicable to such Lender, (d) to (i) any prospectiveParticipant or assignee in connection with any contemplated transfer pursuantto Section 9.6 or (ii) any actual or prospective counterparty (or itsadvisors) to any swap or derivative transaction relating to the Company, providedthat such prospective transferee shall have been made aware of thisSection 9.14 and shall have agreed to be bound by its provisions as if itwere a party to this Credit Agreement, (e) to Gold Sheets and othersimilar bank trade publications; such information to consist of deal terms andother information regarding the credit facilities evidenced by this CreditAgreement customarily found in such publications and (f) in connection with anysuit, action or proceeding for the purpose of defending itself, reducing itsliability, or protecting or exercising any of its claims, rights, remedies orinterests under or in connection with the Credit Documents or any HedgingAgreement.

 

## **Section 9.15         Acknowledgments.**

## ** **

The Borrowers each herebyacknowledges that:

 

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(a)           it has been advised by counsel in thenegotiation, execution and delivery of each Credit Document;

 

(b)           neither the Administrative Agent norany Lender has any fiduciary relationship with or duty to the Borrowers arisingout of or in connection with this Credit Agreement and the relationship betweenthe Administrative Agent and Lenders, on one hand, and the Borrowers, on theother hand, in connection herewith is solely that of debtor and creditor; and

 

(c)           no joint venture exists among theLenders or among the Borrowers and the Lenders.

 

## **Section 9.16         Waiversof Jury Trial.**

## ** **

THE BORROWERS, THEADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLYWAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGALACTION OR PROCEEDING RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDITDOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

 

## **Section 9.17         JudgmentCurrency.**

## ** **

If, for the purposes of obtaining judgment in anycourt, it is necessary to convert a sum due hereunder or under any other CreditDocument in one currency into another currency, the rate of exchange used shallbe that at which in accordance with normal banking procedures theAdministrative Agent could purchase the first currency with such other currencyon the Business Day preceding that on which final judgment is given.**** The obligation of the Borrowers in respect ofany such sum due from it to the Administrative Agent or any Lender hereunder orunder the other Credit Documents shall, notwithstanding any judgment in acurrency (the “Judgment Currency”) other than that in which such sum isdenominated in accordance with the applicable provisions of this CreditAgreement (the “Agreement Currency”), be discharged only to the extentthat on the Business Day following receipt by the Administrative Agent or suchLender of any sum adjudged to be so due in the Judgment Currency, theAdministrative Agent or such Lender may in accordance with normal bankingprocedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency sopurchased is less than the sum originally due to the Administrative Agent orsuch Lender in the Agreement Currency, the Borrowers agree, as a separateobligation and notwithstanding any such judgment, to indemnify theAdministrative Agent or such Lender or the Person to whom such obligation wasowing against such loss.  If the amountof the Agreement Currency so purchased is greater than the sum originally dueto the Administrative Agent or such Lender in such currency, the AdministrativeAgent or such Lender agrees to return the amount of any excess to the Borrowers(or to any other Person who may be entitled thereto under applicable law).

 

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## **Section 9.18         USAPatriot Act Notice.**

 

Each Lender and the Administrative Agent (for itselfand not on behalf of any Lender) hereby notifies the Borrowers that pursuant tothe requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signedinto law October 26, 2001)) (the “Act”), it is required to obtain,verify and record information that identifies the Borrowers, which informationincludes the name and address of the Borrowers and other information that willallow such Lender or the Administrative Agent, as applicable, to identify theBorrowers in accordance with Act.

 

## **Section 9.19**                            Joint and SeveralLiability; Maximum Liability; Waiver of Subrogation.

## ** **

(a)           The Company shall be liable for allamounts due to the Lenders under this Agreement, regardless of which Borroweractually receives the Loans or other Extensions of Credit hereunder, or theamount of such Loans received or the manner in which any Lender accounts forsuch Loans or other Extensions of Credit on its books and records.  The Company’s liability with respect toLoans and Extensions of Credit made to it or to any Foreign Borrower, asapplicable, and the Company’s liability arising as a result of the joint andseveral liability of the Company hereunder and under the other Credit Documentswith respect to Loans or other Extensions of Credit made to any other Borrowerhereunder, shall be separate and distinct obligations, but all such liabilitiesshall be primary obligations of the Company. The joint and several liability of the Company shall in all respects becontinuing, absolute, unconditional and irrevocable, and shall continue in fullforce and effect until all Obligations have been paid in full and allCommitments shall have terminated, and will be paid strictly in accordance withthe terms of this Credit Agreement and each other Credit Document under whichthey arise, regardless of any law, regulation or order now or hereafter ineffect in any jurisdiction affecting any of such terms or the rights of Lenderor any holder of any Note with respect thereto.  The joint and several liability of the Company shall be absolute,unconditional and irrevocable irrespective of:

 

(i)            any lack of validity, legality orenforceability of this Agreement, any Note or any other Credit Document;

 

(ii)           the failure of any Lender or anyholder of any Note to assert any claim or demand or to enforce any right orremedy against any Borrower or any other Person (including any guarantor) underthe provisions of this Agreement, any Note, any other Credit Document orotherwise, or to exercise any right or remedy against any other guarantor of,or collateral securing, any Borrower Obligations of any Borrower;

 

(iii)          any change in the time, manner orplace of payment of, or in any other term of, all or any of the BorrowerObligations of any Borrower, or any other extension, compromise or renewal ofany such liability;

 

(iv)          any reduction, limitation, impairmentor termination of any Borrower of any reason, including any claim of waiver,release, surrender, alteration or compromise, and shall not be subject to (andeach Borrower hereby waives any right to or claim of) any defense or setoff,counterclaim, recoupment or termination

 

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whatsoever by reason ofthe invalidity, illegality, nongenuineness, irregularity, compromise,unenforceability of, or any other event or occurrence affecting, any of theliabilities or otherwise;

 

(v)           any amendment to, rescission, waiver,or other modification of, or any consent to departure from, any of the terms ofthis Credit Agreement, any Note or any other Credit Document;

 

(vi)          any addition, exchange, release,surrender or non-perfection of any collateral, if any, or any amendment to orwaiver or release or addition of, or consent to departure from, any otherguaranty, if any, held by any Lender or any holder of any Note securing any ofthe Borrower Obligations; or

 

(vii)         any other circumstance which mightotherwise constitute a defense available to, or a legal or equitable dischargeof, any Borrower, any surety or any guarantor.

 

(b)  The Company (herein, the “WaivingBorrower”) hereby agrees that it will not exercise any rights which it mayacquire by reason of any payment made hereunder, whether by way of subrogation,reimbursement or otherwise, until the prior payment, in full and in cash, ofall Borrower Obligations.  Any amountpaid to the Company on account of any payment made hereunder prior to thepayment in full of all Borrower Obligations shall be held in trust for thebenefit of any Lender and such holder of a Note and shall immediately be paidto such Lender and such holder of a Note and credited and applied against theBorrower Obligations of the Waiving Borrower and the other Borrowers, whethermatured or unmatured, in accordance with the terms of this Agreement; provided,however, that if

 

(1)           the Waiving Borrower has made paymentto such Lender and such holder of a Note of all or any part of the BorrowerObligations of any other Borrower, and

 

(2)           all Borrower Obligations have beenpaid in full and all Commitments have been permanently terminated,

 

each Lender and each holder of a Note agrees that, atthe Waiving Borrower’s request, such Lender and the holders of such Notes willexecute and deliver to the Waiving Borrower appropriate documents (withoutrecourse and without representation or warranty) necessary to evidence thetransfer by subrogation to the Waiving Borrower of an interest in the BorrowerObligations of each other Borrower resulting from such payment by the WaivingBorrower.  In furtherance of theforegoing, for so long as any Borrower Obligations or Commitments remain outstanding,the Waiving Borrower shall refrain from taking any action or commencing anyproceeding against any other Borrower (or its successors or assigns, whether inconnection with a bankruptcy proceeding or otherwise) to recover any amounts inrespect of payments made under this Agreement or the other Credit Documents inrespect of Borrower Obligations of any other Borrower to any Lender or anyholder of a Note.  The Companyacknowledges that it will receive direct and indirect benefits from the

 

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financing arrangements contemplated by this CreditAgreement and that the provisions of this Section are knowingly agreed to incontemplation of such benefits.

 

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IN WITNESS WHEREOF, theparties hereto have caused this Credit Agreement to be duly executed anddelivered by its proper and duly authorized officers as of the day and yearfirst above written.

 

 
| COMPANY:  | IMS HEALTH INCORPORATED**,** |
|-----------|------------------------------|
|      | a Delaware corporation**,**  |
|      |                         |
|      |                         |
|      | By:                          |   |   |
|      | Name:                        |
|      | Title:                       |
|      |                         |
|      |                         |
| SWISS     | IMS AG,                      |
| BORROWER: | a Swiss****corporation       |
|      |                         |
|      |                         |
|      | By:                          |   |   |
|      | Name:                        |
|      | Title:                       |
|      |                         |
|      |                         |
| JAPANESE  | IMS JAPAN K.K.               |
| BORROWER: | a Japanese****corporation    |
|      |                         |
|      |                         |
|      | By:                          |   |   |
|      | Name:                        |
|      | Title:                       |

 

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| ADMINISTRATIVE AGENT |                                     |
|----------------------|------------------------------------------|
| AND LENDERS:         | WACHOVIA BANK, NATIONAL  ASSOCIATION,    |
|                 | as Administrative Agent  and as a Lender |
|                 |                                     |
|                 | By:                                      |   |   |
|                 | Name:                                    |
|                 | Title:                                   |

 

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