**Exhibit 10.2**

 

 

 

364-DAY

CREDIT AGREEMENT

 

among

 

IMS HEALTHINCORPORATED,

as Company,

 

THE LENDERSPARTIES HERETO,

 

WACHOVIA BANK,NATIONAL ASSOCIATION,

as Administrative Agent,

 

BARCLAYS BANK PLCAND ABN AMRO BANK N.V.,

as Co-Syndication Agents,

 

and

 

SUNTRUST BANK ANDFORTIS CAPITAL CORP.,

as Co-Documentation Agents

 

Dated as of April5, 2004

 

 

WACHOVIA CAPITALMARKETS, LLC,

as Lead Arranger and 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. |   |
|                                              |   |   |   |   |   |
| ARTICLE II  THE LOANS; AMOUNT AND TERMS      |   |
|                                              |   | Section 2.1 |   | Revolving Loans. |   |
|                                              |   | Section  2.2 |   | Fees. |   |
|                                              |   | Section 2.3 |   | Commitment  Reductions. |   |
|                                              |   | Section 2.4 |   | Prepayments. |   |
|                                              |   | Section  2.5 |   | Minimum  Principal Amount of Tranches. |   |
|                                              |   | Section 2.6 |   | Default Rate. |   |
|                                              |   | Section 2.7 |   | Conversion Options. |   |
|                                              |   | Section  2.8 |   | Computation  of Interest and Fees. |   |
|                                              |   | Section  2.9 |   | Computations,  Pro Rata Treatment and Payments. |   |
|                                              |   | Section  2.10 |   | Non–Receipt  of Funds by the Administrative Agent. |   |
|                                              |   | Section  2.11 |   | Inability  to Determine Interest Rate. |   |
|                                              |   | Section 2.12 |   | Illegality. |   |
|                                              |   | Section  2.13 |   | Deposits  Unavailable; Impractibility. |   |
|                                              |   | Section 2.14 |   | Increased Cost. |   |
|                                              |   | Section 2.15 |   | Increased Capital  Costs. |   |
|                                              |   | Section 2.16 |   | Funding Losses. |   |
|                                              |   | Section  2.17 |   | Taxes. |   |
|                                              |   |   |   |   |   |
| 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. |   |
|                                              |   | 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. |   |

 

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| ARTICLE V  AFFIRMATIVE COVENANTS        |   |
|----------------------------------------------|--------|
|                                         |   | Section 5.1 |   | Financial  Information. |   |
|                                         |   | Section 5.2 |   | Use of Proceeds. |   |
|                                         |   | Section  5.3 |   | Payment of  Borrower 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. |   |
|                                         |   | 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. |   |

 

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|   |   | 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  |   | USA Patriot Act  Notice.                         |   |

 

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| Schedules          |                                              |
|--------------------|---------------------------------------------------|
|               |                                              |
| Schedule 1.1       | Account Designation  Letter                       |
| Schedule 2.1(a)    | Schedule of Lenders and  Revolving Commitments    |
| Schedule 2.1(b)(i) | Form of Notice of Borrowing                       |
| Schedule 2.1(e)    | Form of Revolving 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 Revolving  Commitment Transfer Supplement |

 

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This **364-DAY CREDIT AGREEMENT** (the“Credit Agreement”), dated as of April 5, 2004, is by and among **IMS HEALTHINCORPORATED**,****a Delaware corporation (the “Company”),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 financialaccommodations to the Company in the amount of up to $430,000,000, as moreparticularly described herein;

 

**WHEREAS**, theLenders have agreed to make such loans and other financial accommodations tothe Company 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:

 

# **ARTICLE IDEFINITIONS AND OTHER PROVISIONS**

 

## **Section 1.1            Defined Terms.**

 

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:

 

“Account DesignationLetter” shall mean the Notice of Account Designation Letter dated theClosing Date from the Company to the Administrative Agent substantially in theform 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.

 

“AdministrativeAgent’s Office” shall mean, the Administrative Agent’s address and, asappropriate, account as set forth on Schedule 9.2, or such otheraddress or account as the Administrative Agent may from time to time notify tothe Company and the Lenders.

 

“Affected Lender”shall have the meaning set forth in Section 2.12(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

 

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under, or any committee with responsibility for administering, anyPlan).  For purposes of this definition,a Person shall be deemed to be “controlled by” another Person if such Personpossesses, directly or indirectly, power either (a) to vote 20% or more ofthe securities (on a fully diluted basis) having ordinary voting power for theelection of directors or managing general partners of such Person or(b) to direct or cause the direction of the management and policies ofsuch 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.

 

“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”, (c) the Revolving Commitment Fee shall be the percentage set forthunder the column “Commitment Fee”, (d) that portion of the Term Out Loanwhich is comprised of Alternate Base Rate Loan shall be the percentage setforth under the column “Alternate Base Rate Margin for Term Out Loan”, (e) thatportion of the Term Out Loan which

 

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is comprised of a LIBOR Rate Loan shall be the percentage set forthunder the column “LIBOR Rate Margin for Term Out Loan” :

 
| **Level** |   | **Leverage  Ratio**                      |   | **Alternate  Base Rate  Margin for  Revolving  Loans** |   | **LIBOR Rate  Margin for  Revolving Loans** |   | **Commitment  Fee** |   | **Alternate  Base Rate  Margin for  Term Out Loan** |   | **LIBOR Rate  Margin for  Term Out Loan** |   |
|-----------|--------|------------------------------------------|--------|--------------------------------------------------------|--------|---------------------------------------------|--------|---------------------|--------|-----------------------------------------------------|--------|-------------------------------------------|--------|
| I         |   | >  2.00 to 1.0                        |   | 0.000                                                  | %      | 0.950                                       | %      | 0.175               | %      | 0.200                                               | %      | 1.200                                     | %      |
| II        |   | >  1.25 to 1.0  but  < 2.00 to 1.0 |   | 0.000                                                  | %      | 0.625                                       | %      | 0.120               | %      | 0.000                                               | %      | 0.800                                     | %      |
| III       |   | < 1.25 to 1.0                         |   | 0.000                                                  | %      | 0.450                                       | %      | 0.080               | %      | 0.000                                               | %      | 0.575                                     | %      |

 

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 ofSections 5.1(a), (b) and (c), the Applicable Percentage shall, on the datefive (5) Business Days after the date by which the Company was so requiredto provide such financial information and certifications to the AdministrativeAgent and the Lenders, be based on Level I until such time as suchinformation and certifications are provided, whereupon the Level shall bedetermined by the then current Leverage Ratio.

 

“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,

 

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The Northern Trust Company, UBS AG, Cayman Islands Branch, WachoviaNational Bank, collectively.

 

“Borrower Obligations”shall mean, without duplication, (a) all of the obligations, indebtednessand liabilities of the Company 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 tothe Company, regardless of whether such interest is an allowed claim under theBankruptcy Code) and (b) all liabilities and obligations, wheneverarising, owing from the Company or any of the Company’s Subsidiaries to any HedgingAgreement Provider arising under any Hedging Agreement permitted hereunder.

 

“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, that(a) when used in connection with a rate determination, borrowing orpayment in respect of a LIBOR Rate Loan, the term “Business Day” shall alsoexclude any day on which banks in London, England are not open for dealings indeposits of Dollars in the London interbank market.

 

“Capital Stock”shall mean (a) in the case of a corporation, capital stock, (b) inthe case of an association or business entity, any and all shares, interests,participations, rights or other equivalents (however designated) of capitalstock, (c) in the case of a partnership, partnership interests (whethergeneral or limited), (d) in the case of a limited liability company,membership interests and (e) any other interest or participation thatconfers on a Person the right to receive a share of the profits and losses of,or distributions of assets of, the issuing Person.

 

“Change of Control”shall mean the occurrence of one or more of the following events: (a) any sale,lease, exchange or other transfer (in a single transaction or a series ofrelated transactions) of all or substantially all of the assets of the Companyto any Person or “group” (within the meaning of the Exchange Act and the rulesof the SEC thereunder as in effect on the date hereof), (b) the acquisition orownership, directly or indirectly, beneficially or of record, by any Person or“group” (within the meaning of the Exchange Act and the rules of the SECthereunder as in effect on the date hereof) of 35% or more of the outstandingshares of Voting Stock of the Company, or (c) the occupation of a majority ofthe seats (other than vacant seats) on the board of directors of the Company byPersons who were neither (i) nominated by the current board of directors or(ii) appointed by directors 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

 

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are to the Code as in effect at the date of this Agreement and anysubsequent provisions of the Code amendatory thereof, supplemental thereto orsubstituted therefore.

 

“Commitment Fee”shall have the meaning set forth in Section 2.2(a).

 

“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) ConsolidatedInterest Expense, (ii) depreciation and amortization expense,(iii) income (or minus loss) from discontinued operations and(iv) charges for the in-process, research and development related to anacquisition, 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, any Commitment TransferSupplement and all other agreements, documents, certificates and instrumentsdelivered to the Administrative Agent or any Lender by the Company inconnection therewith (other than any agreement, document, certificate orinstrument related to a Hedging Agreement).

 

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“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 absent agood faith dispute relating to the Credit Agreement or the Extensions of Credithereunder, (b) has failed to pay to the Administrative Agent or any Lenderan amount owed by such Lender pursuant to the terms of this Credit Agreementabsent a good faith dispute relating to the Credit Agreement or the Extensionsof Credit hereunder, or (c) has been deemed insolvent or has becomesubject to a bankruptcy or insolvency proceeding or to a receiver, trustee orsimilar official.

 

“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 Company as the office of suchLender at which Alternate Base Rate Loans of such Lender are to be made.

 

“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 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 would be deemed a “single employer” (i) within the meaning ofSection 414(b), (c), (m) or (o) of the Code or (ii) as a result of the Companyor any other Company being or having been a general partner of such person.

 

“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 of Eurocurrencyliabilities, as defined in Regulation D of such Board as in effect fromtime to time, or any similar category of liabilities for a member bank of theFederal Reserve System in New York City.

 

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“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 Consent” shall have the meaningascribed thereto in Section 2.1(f).

 

“Extension Consent Date” shall have the meaningascribed thereto in Section 2.1(f).

 

“Extension of Credit”shall mean, as to any Lender, the making of a Loan by such Lender.

 

“Extension Request”shall have the meaning ascribed thereto in Section 2.1(f).

 

“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) ConsolidatedEBITDA to (b) Fixed Charges as of the last day of such Fiscal Quarter.

 

“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 FundedDebt Payments plus (iii) Consolidated Capital Expenditures plus(iv) additions to computer software.

 

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

 

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

 

“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 withthe Company or any of its Subsidiaries that is permitted hereunder to theextent such Person is a Lender, an Affiliate of a Lender or any other Personthat was a Lender (or an Affiliate of a Lender) at the time it entered into theHedging Agreement but has ceased to be a Lender (or whose Affiliate has ceasedto be a Lender) 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.

 

“IMS AG” shallmean IMS AG, a Swiss corporation and wholly-owned subsidiary of the Company.

 

“IMS Japan” shallmean IMS Japan K.K., a Japanese corporation and a wholly-owned subsidiary ofthe Company.

 

“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.

 

“Interest DeterminationDate” shall have the meaning assigned thereto in the definition of“Applicable Percentage”.

 

“Interest Payment Date”shall mean (a) as to any Alternate Base Rate Loan, the last Business Dayof each March, June, September and December and on the applicable Maturity Dateand the Term Out Maturity Date, if applicable, (b) as to any LIBOR RateLoan having an Interest Period of three months or less, the last day of suchInterest Period, (c) as to any LIBOR

 

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Rate Loan having an Interest Period longer than three months, each daywhich is three months after the first day of such Interest Period and the lastday of such Interest Period and (d) as to any Loan which is the subject of amandatory prepayment required pursuant to Section 2.4(b), the date onwhich 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 the prior consent of theAdministrative Agent and each of the Lenders (in its sole discretion)), subjectto availability, as selected by the Company in the Notice of Borrowing orNotice 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 Company by irrevocable notice to the Administrative Agent notless than three Business Days prior to the last day of the then currentInterest 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 Company shall fail to givenotice as provided above, the Company shall be deemed to have selected an AlternateBase Rate Loan to replace the affected LIBOR Rate Loan;

 

(iv)          no Interest Period in respect of anyLoan shall extend beyond the applicable Maturity Date (or, if the Companychooses to term out the then existing Loans pursuant to Section 2.1(c)(ii),the Term Out 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

 

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same date and have thesame duration, although borrowings, extensions and conversions may, inaccordance with the provisions hereof, be combined at the end of existingInterest Periods to constitute a new LIBOR Rate Loan with a single InterestPeriod.

 

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

 

“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 at approximately 11:00 A.M. (London time) twoBusiness Days prior to the first day of such Interest Period for a termcomparable to such Interest Period.  Iffor any reason such rate is not available, the term “LIBOR” shall mean, for anyLIBOR Rate Loan for any Interest Period therefor, the rate per annum (roundedupwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters ScreenLIBO Page as the London interbank offered rate for deposits in Dollars, asappropriate, at approximately 11:00 A.M. (London time) two Business Daysprior to the first day of such Interest Period for a term comparable to suchInterest Period; provided, however, if more than one rate isspecified 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 anyreason, neither of such rates is available, then “LIBOR” shall mean the rateper annum at which, as determined by the Administrative Agent, Dollars in anamount comparable to the Loans then requested are being offered to leadingbanks at approximately 11:00 A.M. London time, two (2) Business Daysprior to the 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 Company as the office of such Lender at which theLIBOR Rate Loans of such Lender are to be made.

 

“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.

 

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“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 the Term Out Loan, as appropriate.

 

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

 

“Material Subsidiary”shall mean, as of any date of determination, any Subsidiary that (a) accountedfor at least five percent (5%) of consolidated revenues of the Company and itsSubsidiaries, in each case ending on the last day of the last of the lastFiscal Quarter immediately preceding the date as of which any suchdetermination is made; or (b) has assets which represent at least five percent(5%) of the consolidated assets of the Company and its Subsidiaries as of thelast day of the last Fiscal Quarter immediately preceding the date as of whichany such determination is made; all of which, with respect to clauses (a) and(b) shall be as reflected on the financial statements of the Company for theperiod, or as of the date in question.

 

“Maturity Date”means, as to each Lender, the date that is 364 days following the Closing Date,or if extended with the written consent of such Lender, such later date notmore than 364 days following the then applicable Maturity Date.

 

“Note” or “Notes”shall mean the Revolving Notes, collectively or individually, as appropriate.

 

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

 

“Notice ofConversion/Extension” shall mean the written notice of conversion orextension as referenced and defined in Section 2.7.

 

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

 

“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.

 

“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.

 

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“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 Revolving Commitments or (b) if the Revolving Commitmentshave been terminated, the aggregate principal amount of the outstanding Loans provided,however, that if any Lender shall be a Defaulting Lender at such time,then there shall be excluded from the determination of Required Lenders, theBorrower Obligations owing to such Defaulting Lender and such DefaultingLender’s Revolving Commitments, or after termination of the RevolvingCommitments, the principal balance of the Borrower Obligations owing to suchDefaulting 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.

 

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

 

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

 

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“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 CommittedAmount” shall mean the amount of each Lender’s Revolving Commitment asspecified on Schedule 2.1(a), as such amount may be reduced fromtime to time in accordance with the provisions 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 Company 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 orreplaced from 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.

 

“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.

 

“Taxes” shall havethe meaning set forth in Section 2.17.

 

“Term Out MaturityDate” shall have the meaning set forth in Section 2.1(c)(ii).

 

“Term Out Loan”has the meaning set forth in Section 2.1(c)(ii).

 

“Three Year CreditAgreement” means that certain Three Year Credit Agreement dated as of thedate hereof among the Company, IMS AG, IMS Japan, the Lenders identifiedtherein and Wachovia, as administrative agent as amended, modified,supplemented, extended or restated from time to time.

 

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“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.

 

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

 

“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            Accounting Terms.**

 

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.

 

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Notwithstanding theabove, the parties hereto acknowledge and agree that, for purposes of allcalculations made in determining compliance for any applicable period with thefinancial covenants set forth in Section 6.6, (i) beginning afterconsummation of any acquisition, (A) income statement items and otherbalance sheet items (whether positive or negative) attributable to the targetacquired in such transaction shall be included in such calculations to theextent relating to such applicable period, subject to adjustments mutuallyacceptable to the Company and the Administrative Agent, and (B) Indebtednessof a target which is retired in connection with a acquisition shall be excludedfrom such calculations and deemed to have been retired as of the first day ofsuch applicable period and (ii) beginning after consummation of any “Sale”permitted by Section 6.3(b), (A) income statement items and other balancesheet items (whether positive or negative) attributable to the assets disposedof shall be excluded in such calculations to the extent relating to suchapplicable period, subject to adjustments mutually acceptable to the Companyand the Administrative Agent and (B) Indebtedness of the target of anacquisition which is retired in connection with a Sale permitted by Section6.3(b) shall be excluded from such calculations and deemed to have been retiredas of the first day of such applicable period.

 

# **ARTICLE IITHE LOANS; AMOUNT AND TERMS**

 

## **Section 2.1            Revolving Loans.**

 

(a)           Revolving Commitment.  During the Commitment Period, subject to theterms and conditions hereof, each Lender severally agrees to make revolvingcredit loans in Dollars to the Company from time to time in an aggregateprincipal amount of up to **FOUR HUNDRED THIRTY MILLIONDOLLARS ($430,000,000)** (as such aggregate maximum amount may bereduced from time to time as provided in Section 2.3, the “AggregateRevolving Committed Amount”) for the purposes hereinafter set forth; provided,however, that with regard to each Lender individually, the aggregateprincipal amount of such Lender’s Revolving Commitment Percentage ofoutstanding Revolving Loans shall not exceed such Lender’s Revolving CommittedAmount, and with regard to the Lenders collectively, the aggregate principalamount of the outstanding Revolving Loans shall not exceed the AggregateRevolving Committed Amount.  RevolvingLoans may consist of Base Rate Loans or LIBOR Rate Loans, or a combinationthereof, as the Company may request, and may be repaid and reborrowed inaccordance with the provisions hereof; provided, however, RevolvingLoans made on the Closing Date or on any of the three Business Days followingthe Closing Date may only consist of Alternate Base Rate Loans unless theCompany executes a funding indemnity letter in form and substance satisfactoryto the Administrative Agent.  LIBOR RateLoans shall be made by each Lender at its LIBOR Lending Office and AlternateBase Rate Loans at its Domestic Lending Office.

 

(b)           Revolving Loan Borrowings.

 

(i)            Notice of Borrowing.  The Company may request a Revolving Loanborrowing by written notice (or telephone notice promptly confirmed in writingwhich

 

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confirmation may be byfax) to the Administrative Agent not later than 12:00 Noon (Charlotte,North Carolina time) on the Business Day prior to the date of requestedborrowing in the case of Alternate Base Rate Loans denominated in Dollars, andon the third Business Day prior to the date of the requested borrowing in thecase of LIBOR Rate Loans denominated in Dollars.  Each such request for borrowing shall be irrevocable and shallspecify (A) that a Revolving Loan is requested, (B) the date of therequested borrowing (which shall be a Business Day), (C) the aggregateprincipal amount to be borrowed, and (D) 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).  A form of Notice of Borrowing (a “Noticeof Borrowing”) is attached as Schedule 2.1(b)(i).  If the Company shall fail to specify in anysuch Notice of Borrowing (I) an applicable Interest Period in the case ofa LIBOR Rate Loan, then such notice shall be deemed to be a request for anInterest Period of one month or (II) the type of Revolving Loan requested,then such notice shall be deemed to be a request for an Alternate Base RateLoan hereunder.  The AdministrativeAgent shall give notice to each Lender promptly upon receipt of each Notice ofBorrowing, the contents thereof and each such Lender’s share thereof.

 

(ii)           MinimumAmounts.  Each Revolving Loan whichis an Alternate Base Rate Loan shall be in a minimum aggregate amount of$1,000,000 and in integral multiples of $500,000 in excess thereof (or theremaining amount of the Aggregate Revolving Committed Amount, if less).  Each Revolving Loan which is a LIBOR RateLoan shall be in a minimum aggregate amount of $1,000,000 and in integralmultiples of $500,000 in excess thereof.

 

(iii)          Advances.  Each Lender will make its RevolvingCommitment Percentage of each Revolving Loan borrowing available to the AdministrativeAgent, for the account of the Company, in Dollars and in funds immediatelyavailable to the Administrative Agent, at the Administrative Agent’s Office by12:00 Noon on the date specified in the applicable Notice of Borrowing inthe case of any Revolving Loan denominated in Dollars.  Such borrowing will then be made availableto the Company by the Administrative Agent by crediting the account of theCompany on the books of the Administrative Agent’s Office with the aggregate ofthe amounts made available to the Administrative Agent by the Lenders and inlike funds as received by the Administrative Agent.

 

(c)           Repayment.

 

(i)            The principal amount of allRevolving Loans shall be due and payable in full on the Maturity Date, unlessaccelerated sooner pursuant to Section 7.2.

 

(ii)           Onor before the date that is ten (10) Business Days prior to the Maturity Date,the Company may, as long as no Default or Event of Default exists and iscontinuing, notify the Administrative Agent in writing (and the AdministrativeAgent shall promptly forward such notice to the Lenders) that, as of theMaturity Date, the Company is converting all of the outstanding Revolving Loansto a term loan (the “Term

 

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Out Loan”)which shall be due and payable in full on the date one year subsequent to theMaturity Date (the “Term Out Maturity Date”).  It is understood and agreed that subsequent to the Maturity Date,(i) the Company may no longer request, and the Lenders are no longerobligated to make or issue, new Revolving Loans, (ii) the Revolving Commitmentof each Lender shall automatically terminate, (iii) any amounts repaid may notbe reborrowed, (iv) interest shall accrue on the Term Out Loan, at theoption of the Company, in accordance with the terms of Section 2.1(d)(ii)and, as set forth in the definition of Applicable Margin, and (v) theCompany shall have the right to prepay all or a portion of the outstanding TermOut Loan in accordance with Section 2.3(a).

 

(d)           Interest.  Subject to the provisions ofSection 2.7(i),

 

(i) RevolvingLoans shall bear interest as follows:

 

(A)          AlternateBase Rate Loans.  During suchperiods as Revolving Loans shall be comprised of Alternate Base Rate Loans,each such Alternate Base Rate Loan shall bear interest at a per annum rateequal to the sum of the Alternate Base Rate for Revolving Loans plus theApplicable Percentage; and

 

(B)           LIBORRate Loans.  During such periods asRevolving Loans shall be comprised of LIBOR Rate Loans, each such LIBOR RateLoan shall bear interest at a per annum rate equal to the sum of the LIBOR Ratefor Revolving Loans plus the Applicable Percentage.

 

(ii)           the Term Out Loan shall bear interestas follows:

 

(A)          AlternateBase Rate Loans.  During suchperiods as the Term Out Loan shall be comprised of Alternate Base Rate Loans,such Alternate Base Rate Loans shall bear interest at a per annum rate equal tothe sum of the Alternate Base Rate for Term Out Loan plus the ApplicablePercentage; and

 

(B)           LIBORRate Loans.  During such periods asthe Term Out Loan shall be comprised of a LIBOR Rate Loans, such LIBOR RateLoans shall bear interest at a per annum rate equal to the sum of the LIBORRate for Term Out Loan plus the Applicable Percentage.

 

Interest on all Loans shallbe payable in arrears on each Interest Payment Date.

 

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

 

(f)            Extension of Maturity Date.  The Company may, within 90 days, but notless than 60 days, prior to the then applicable Maturity Date, by notice to theAdministrative Agent and the Lenders, make written request of the Lenders toextend the then applicable Maturity Date for an additional period of 364 days(the “Extension Request”).  EachLender shall make a

 

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determination not later than 30 days following receipt of the ExtensionRequest (the date that is 30 days following the date the Extension Request isreceived shall be the “Extension Consent Date”) as to whether or not itwill agree to extend the Maturity Date as requested (such approval of anextension shall be an “Extension Consent”); provided, however,that failure by any Lender to make a timely response to the Company’s requestfor extension of the Maturity Date shall be deemed to constitute a refusal bysuch Lender to extend the Maturity Date.

 

(g)           LenderNot Consenting.  If by any ExtensionConsent Date the Company and the Administrative Agent have not received anExtension Consent from any Lender, the Maturity Date, as it relates to suchLender, shall not be extended, the Revolving Commitment of such Lender shallterminate on the Maturity Date applicable to it and any Loans made by suchLender, all accrued and unpaid interest thereon and all other amounts due underthis Credit Agreement to such Lender shall be due and payable on the MaturityDate applicable to it.  Upon thetermination of the Revolving Commitment of any such Lender, subject to Sections2.1(i) or 2.1(j), the Aggregate Revolving Committed Amount shall be reduced bythe amount of such terminated Revolving Commitment, and the RevolvingCommitment Percentage of each other Lender shall be adjusted to that percentageobtained by dividing the Revolving Commitment of such Lender by the AggregateRevolving Committed Amount after giving effect to such reduction.

 

(h)           OtherLenders.  No refusal by any oneLender to consent to any extension of the Maturity Date shall affect theextension of the Maturity Date as it may relate to the Revolving Commitment andRevolving Loans of any Lender which consents to such extension as provided inSection 2.1(f), and one or more Lenders may consent to the extension ofthe Maturity Date as it relates to them notwithstanding any refusal by anyother Lenders so to consent; provided that even as to the consentingLenders the Maturity Date will be extended only upon consent to such anextension by Lenders holding more than 51% of the Aggregate Revolving CommittedAmount.

 

(i)            Increasein Revolving Commitment of Other Lender or Lenders.  If any Lender does not deliver an ExtensionConsent as provided in Section 2.1(f), the Company may offer each Lender whichhas delivered an Extension Consent as provided in Section 2.1(f) a reasonableopportunity to increase its Revolving Commitment by an amount equal to itspro-rata share (based on its Commitment before such increase) of the RevolvingCommitment of the Lender which does not deliver an Extension Consent asprovided in Section 2.1(f).  Aftergiving such Lenders such an opportunity, the Company may, with the approval ofthe Administrative Agent, amend this Credit Agreement to increase the RevolvingCommitment of any other Lender or Lenders with the consent of such Lender orLenders provided that such increase does not increase the Aggregate RevolvingCommitted Amount to an amount greater than the Aggregate Revolving CommittedAmount in effect immediately before such expiration or termination.

 

(j)            AdditionalLender or Lenders.  If any Lenderdoes not deliver an Extension Consent as provided in Section 2.1(f), upon theexpiration of the Revolving Commitment of such Lender, the Company may, withthe approval of the Administrative Agent, amend this Credit Agreement asprovided in Section 9.6 to add one or more other Lenders as parties, with suchCommitment or Commitments as may be agreed to by the Administrative Agent andsuch other

 

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Lender or Lenders, provided that such additions do not increase theAggregate Revolving Committed Amount to an amount greater than the AggregateRevolving Committed Amount in effect immediately before such expiration ortermination.

 

(k)           Notice.  The Administrative Agent shall promptlyprovide each of the Lenders with a copy of any amendment made pursuant toSection 2.1(i) or Section 2.1(j).

 

## **Section 2.2            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.  The Commitment Fee shall be payablequarterly on the last Business Day of each calendar quarter.

 

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

 

## **Section2.3            Commitment Reductions.**

 

(a)           Voluntary Reductions.  The Company 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 amount of $5,000,000 or a wholemultiple of $1,000,000 in excess thereof and shall be irrevocable and effectiveupon receipt by the Administrative Agent, provided that no suchreduction or termination shall be permitted if after giving effect thereto, andto any prepayments of the Loans made on the effective date thereof, the sum ofthe outstanding Revolving Loans would exceed the Aggregate Revolving CommittedAmount.

 

(b)           Maturity Date.  The Revolving Commitment shall automaticallyterminate on the Maturity Date.

 

## **Section 2.4            Prepayments.**

 

(a)           Optional Prepayments.  The Company 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 amount of $1,000,000****and integral multiples of $250,000****inexcess thereof.  The Company shall givethree Business Days’ irrevocable notice in the case of LIBOR Rate Loans andsame-day irrevocable notice on any Business Day in the case of Alternate BaseRate Loans, to the Administrative Agent (which shall notify the Lenders thereofas soon as practicable).  Prepaymentsshall be applied first to Alternate Base Rate Loans and then to LIBOR RateLoans in direct order of Interest Period maturities.  All prepayments under this Section 2.4(a) shall be subjectto Section 2.17, but otherwise without

 

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premium or penalty.  Interest onthe principal amount prepaid shall be payable on the next occurring InterestPayment Date that would have occurred had such loan not been prepaid or, at therequest of the Administrative Agent, interest on the principal amount prepaidshall be payable on any date that a prepayment is made hereunder through thedate of prepayment.  Amounts prepaid onthe Revolving Loans may be reborrowed in accordance with the terms hereof.

 

(b)           Mandatory Prepayments.  If at any time after the Closing Date, theaggregate principal amount of the outstanding Revolving Loans shall exceed theAggregate Revolving Committed Amount, the Company immediately shall prepay theLoans in an amount sufficient to eliminate such excess.

 

Prepayments shall beapplied first to Alternate Base Rate Loans and then to LIBOR Rate Loans indirect order of Interest Period maturities. All prepayments under this Section 2.4(b) shall be subject toSection 2.17 and be accompanied by interest on the principal amount prepaidthrough the date of prepayment.

 

(c)           Hedging Obligations Unaffected.  Any repayment or prepayment made pursuant tothis Section 2.4 shall not affect the Company’s 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.

 

## **Section2.5            Minimum Principal Amountof Tranches.**

 

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 amount of the Revolving Loans comprising any Tranche shallbe (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 2.6            Default Rate.**

 

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, payable on demand, at a per annum rate 2%greater than the rate which would otherwise be applicable (or if no rate isapplicable, whether in respect of interest, fees or other amounts, then theAlternate Base Rate plus the Applicable Percentage plus 2%).

 

## **Section2.7            Conversion Options.**

 

(a)           The Company 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. If the date upon which an Alternate Base

 

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Rate Loan is to be converted to a LIBOR Rate Loan is not a BusinessDay, then such conversion shall be made on the next succeeding Business Day andduring the period from such last day of an Interest Period to such succeedingBusiness Day such Loan shall bear interest as if it were an Alternate Base RateLoan.  All or any part of outstandingAlternate Base Rate Loans may be converted as provided herein, providedthat (i) no Loan may be converted into a LIBOR Rate Loan when any Defaultor Event of Default has occurred and is continuing and (ii) partialconversions shall be in an aggregate principal amount of $1,000,000 or a wholemultiple 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 Company with the notice provisions contained inSection 2.7(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 Company shall fail to give timelynotice of an election to continue a LIBOR Rate Loan, or the continuation ofLIBOR Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall beautomatically converted to Alternate Base Rate Loans at the end of theapplicable Interest Period with respect thereto.

 

## **Section2.8            Computation of Interestand 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 the Companyand the Lenders of each determination of a LIBOR Rate on the Business Day ofthe determination thereof.  Any changein the interest rate on a Loan resulting from a change in the Alternate BaseRate shall become effective as of the opening of business on the day on whichsuch change in the Alternate Base Rate shall become effective.  The Administrative Agent shall as soon aspracticable notify the Company 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 Company and the Lenders in theabsence of manifest error.  TheAdministrative Agent shall, at the request of the Company, deliver to theCompany a statement showing the computations used by the Administrative Agentin determining any interest rate.

 

## **Section2.9            Computations, Pro RataTreatment and Payments.**

 

(a)           Each payment on account of an amountdue from the Company hereunder or under any other Credit Document (other thanthe Three Year Credit Agreement), shall be made by the Company 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.  Upon request, theAdministrative Agent will give the

 

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Company a statement showing the computation used in calculating suchamount, which statement shall be conclusive in the absence of manifesterror.  The obligation of the Company tomake each payment on account of such amount in the currency in which suchamount is denominated shall not be discharged or satisfied by any tender, orany recovery pursuant to any judgment, which is expressed in or converted intoany other currency, except to the extent such tender or recovery shall resultin the actual receipt by the Administrative Agent of the full amount in theappropriate currency payable hereunder. The Company agrees that its obligation to make each payment on accountof such amount in the currency in which such amount is denominated shall beenforceable as an additional or alternative claim for recovery in such currencyof the amount (if any) by which such actual receipt shall fall short of thefull amount of such currency payable hereunder, and shall not be affected byjudgment 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 Company pursuant to Section 2.2, second, to interest then due andowing in respect of the Notes of the Company and, third, to principal then dueand owing hereunder and under the Notes of the Company.  Each payment on account of any fees pursuantto Section 2.2 shall be made pro rata in accordancewith the respective amounts due and owing. Each optional prepayment of the Loans shall be applied in accordancewith Section 2.4(a) and each mandatory prepayment of the Loans shall beapplied in accordance with Section 2.4(b). Payments made pursuant to Section 2.12 shall be applied inaccordance with such section.  Allpayments (including prepayments) to be made by a Company on account ofprincipal, interest and fees shall be made without defense, set-off orcounterclaim (except as provided in Section 2.17(b)), shall be made to theAdministrative Agent for the account of the Lenders in immediately availablefunds at the Administrative Agent’s Office and shall be made in Dollars notlater than 12:00 Noon on the date when due.  Any payment received after the foregoing deadlines shall bedeemed received on the next Business Day. The Administrative Agent shall distribute such payments to the Lendersentitled thereto promptly upon receipt in like funds as received.  If any payment hereunder (other thanpayments on the LIBOR Rate Loans) becomes due and payable on a day other than aBusiness Day, such payment shall be extended to the next succeeding BusinessDay, and, with respect to payments of principal, interest thereon shall bepayable 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 such extensionwould be to extend such payment into another calendar month, in which eventsuch 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 Revolving Commitments shallautomatically terminate and the Loans (with accrued interest thereon) and allother amounts under the Credit Documents shall automatically become due andpayable in accordance with the terms of such Section), all amounts collected orreceived by the Administrative Agent or any Lender on account of the BorrowerObligations or any other

 

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amounts outstanding under any of the Credit Documents shall be paidover or delivered as follows:

 

FIRST,to the payment of all reasonable out-of-pocket costs and expenses (includingwithout limitation reasonable attorneys’ fees) of the Administrative Agent inconnection with enforcing the rights of the Lenders under the Credit Documents;

 

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

 

THIRD,to the payment 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 the payment of all of the Borrower Obligations consisting of accrued feesand interest, and including with respect toany Hedging Agreement between the Company and any Hedging Agreement Provider,any fees, premiums and scheduled periodic payments due under such HedgingAgreement and any interest accrued thereon;

 

FIFTH,to the payment of the outstanding principalamount of the Borrower Obligations, and including with respect to any HedgingAgreement between the Company and any Hedging Agreement Provider, to the extentsuch Hedging Agreement is permitted hereunder, any breakage, termination orother payments due under such Hedging Agreement and any interest accruedthereon;

 

SIXTH,to all other Borrower Obligationsand other obligations which shall have become due and payable under the CreditDocuments or otherwise and not repaid pursuant to clauses “FIRST” through“FIFTH” above; and

 

SEVENTH,to the payment of the surplus, if any, to whoever may be lawfully entitled toreceive such 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;and (ii) each of the Lenders shall receive an amount equal to its pro ratashare (based on the proportion that the then outstanding Loans held by suchLender bears to the aggregate then outstanding Loans) of amounts available tobe applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH”above.

 

## **Section2.10         Non-Receipt of Funds bythe Administrative 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 the AdministrativeAgent, the Administrative Agent may assume that such Lender has made suchproceeds available to the Administrative Agent on such date, and theAdministrative Agent may

 

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in reliance upon such assumption(but shall not be required to) make available to the Company 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 Company, and the Companyshall immediately pay such corresponding amount to the AdministrativeAgent.  The Administrative Agent shallalso be entitled to recover from the Lender or the Company, as the case may be,interest on such corresponding amount in respect of each day from the date suchcorresponding amount was made available by the Administrative Agent to theCompany to the date such corresponding amount is recovered by theAdministrative Agent at a per annum rate equal to (i) from the Company atthe applicable rate for the applicable borrowing pursuant to the Notice of Borrowingand (ii) from a Lender at the Federal Funds Effective Rate.

 

(b)           Unless the Administrative Agent shallhave been notified in writing by the Company, prior to the date on which anypayment is due from the Company hereunder (which notice shall be effective uponreceipt) that the Company does not intend to make such payment, theAdministrative Agent may assume that the Company has made such payment whendue, and the Administrative Agent may in reliance upon such assumption (butshall not be required to) make available to each Lender on such payment date anamount equal to the portion of such assumed payment to which such Lender isentitled hereunder, and if the Company has not in fact made such payment to theAdministrative Agent, such Lender shall, on demand, repay to the AdministrativeAgent the amount made available to such Lender.  If such amount is repaid to the Administrative Agent on a dateafter the date such amount was made available to such Lender, such Lender shallpay to the Administrative Agent on demand interest on such amount in respect ofeach day from the date such amount was made available by the AdministrativeAgent to such Lender to the date such amount is recovered by the AdministrativeAgent at a per annum rate equal to the Federal Funds Effective Rate.

 

(c)           A certificate of the AdministrativeAgent submitted to the Company or any Lender with respect to any amount owingunder this Section 2.10 shall be conclusive in the absence of manifesterror.

 

## **Section2.11         Inability to DetermineInterest 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 Company has requested beoutstanding as a LIBOR Tranche during such Interest Period, the AdministrativeAgent shall forthwith give telephone notice of such determination, confirmed inwriting, to the Company, and the Lenders at least two Business Days prior tothe first day of such Interest Period. If such notice is given (a) any affected LIBOR Rate Loans requestedto be made on the first day of such Interest Period

 

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shall be made, at the sole option of the Company, in Dollars asAlternate Base Rate Loans and (b) any affected Loans that were to havebeen converted on the first day of such Interest Period to or continued asLIBOR Rate Loans shall be converted to or continued, at the sole option of theCompany, in Dollars as Alternate Base Rate Loans.  Until any such notice has been withdrawn by the AdministrativeAgent, no further Loans shall be made as, continued as, or converted into,LIBOR Rate Loans for the Interest Periods so affected.

 

## **Section 2.12         Illegality.**

 

(a)           Notwithstanding any other provisionherein, if the adoption of or any change in any Requirement of Law or in theinterpretation or application thereof by the relevant Governmental Authorityshall make it unlawful for any Lender or its LIBOR Lending Office to make ormaintain LIBOR Rate Loans as contemplated by this Credit Agreement (any suchaffected LIBOR Rate Loans, the “Affected Loans”), then such Lender,together with Lenders giving notice under Section 3.8 and 3.10, shallbe an “Affected Lender” and by written notice to the Company and to theAdministrative Agent:

 

(i)            may declare that Affected Loans willnot thereafter (for the duration of such unlawfulness) be made by such Lenderhereunder, whereupon any request for an Affected Loan shall, as to such Lenderonly be deemed a request for a Alternate Base Rate Loan (unless it should alsobe illegal for the Affected Lender to provide a Base Rate Loan, in which casesuch Loan 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 Company), unless such declarationshall be subsequently withdrawn; and

 

(ii)           such Lender may require that alloutstanding Affected Loans, as the case may be, made by it be converted toAlternate Base Rate Loans, in which event all such Affected Loans shall beautomatically converted to Alternate Base Rate Loans as of the effective dateof such notice as provided in paragraph (b) below.

 

In the event any Lendershall exercise its rights under (i) or (ii) above with respect to anyAffected 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 2.12, a notice to the Company by any Lender shall be effective asto each such Affected Loan, if lawful, on the last day of the Interest Periodcurrently applicable to such Affected Loan; in all other cases such noticeshall be effective on the date of receipt by the Company.

 

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## **Section2.13         Deposits Unavailable;Impractibility.**

 

If the Company hasnotified the Administrative Agent of its intention to borrow a LIBOR Loan foran Interest Period and the Administrative Agent determines (which determinationshall be conclusive and binding on the Company) that

 

(a)           deposits of the necessary amount  for such Interest Period are not availableto the Lenders in the London interbank market or, by reason of circumstancesaffecting such market, adequate and reasonable means do not exist forascertaining LIBOR for such Interest Period; or

 

(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 aLIBOR Loan previously given by the Company and not yet borrowed shall be deemedto be a notice to make a Base Rate Loan.

 

## **Section 2.14         Increased Cost.**

 

The Company 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 in respect of,making or maintaining any LIBOR Rate Loans relating to the adoption of any law,rule or regulation or any change therein or any change in the interpretation oradministration thereof by any Governmental Authority, central bank orcomparable agency charged with the interpretation or administrationthereof.  The additional amount requiredto compensate such Lender for such increased cost or reduced amount shall be payableby the Company to such Lender within five days of the Company’s receipt ofwritten notice from such Lender specifying such increased cost or reducedamount and the amount required to compensate such Lender therefor, which noticeshall, in the absence of manifest error, be conclusive and binding on theCompany.  In determining such additionalamount, the applicable Lender may use reasonable averaging, attribution andallocation methods.  The agreements inthis Section 2.14 shall survive the termination of this Credit Agreementand payment of the Borrower Obligations.

 

## **Section2.15         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 Company, theCompany shall immediately pay directly to such Lender additional amountssufficient to compensate such Lender or such controlling entity for such

 

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reduction 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 Company.  In determining such amount, the applicable Lender may usereasonable averaging, attribution and allocation methods.  The agreements in this Section 2.15shall survive the termination of this Credit Agreement and payment of theBorrower Obligations.

 

## **Section 2.16         Funding Losses.**

 

The Company willindemnify any Lender upon demand against any loss or expense which such Lendermay sustain or incur (including, without limitation, any loss or expensesustained or incurred in obtaining, liquidating or employing deposits or otherfunds acquired to effect, fund or maintain any Loan) as a consequence of (i)any failure of the Company to make any payment when due of any amount duehereunder, (ii) any failure of the Company to borrow a Loan on a date specifiedtherefor in a notice thereof, or (iii) any payment (including any payment uponsuch Lender’s acceleration of the Loans) or prepayment of any LIBOR Loan on adate other than the last day of the Interest Period for such Loan.

 

## **Section 2.17         Taxes.**

 

(a)           All payments made by the Companyhereunder or under any Note shall be, except as provided in Section 2.17(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 Company agrees 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 Company 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 Company.  The Companyagrees to indemnify and hold harmless each Lender, and reimburse such Lenderupon its written request, for the amount of any Taxes so levied or imposed andpaid 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 Company 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 anysuccessor forms prescribed by the

 

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Internal Revenue Service) certifying such Lender’s entitlement to acomplete exemption from United States withholding tax with respect topayments to be made under this Credit Agreement and under any Note.  Each other Lender shall provide the Companywith two accurate and complete original signed copies of Internal Revenue FormW-9 or any successor form prescribed by the Internal Revenue Service.  In addition, each Lender agrees that it willdeliver upon the Company’s request updated versions of the foregoing, asapplicable, whenever the previous certification has become obsolete orinaccurate in any material respect, together with such other forms as may berequired in order to confirm or establish the entitlement of such Lender to acontinued exemption from or reduction in United States withholding taxwith respect to payments under this Credit Agreement and any Note.  Notwithstanding anything to the contrarycontained in Section 2.17(a), but subject to the immediately succeedingsentence, (A) the Company shall be entitled, to the extent it is requiredto do so by law, to deduct or withhold Taxes imposed by the United States(or any political subdivision or taxing authority thereof or therein) frominterest, fees or other amounts payable hereunder for the account of any Lenderwhich is not a United 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 Company U.S. Internal Revenue Service Forms thatestablish a complete exemption from such deduction or withholding and(B) the Company shall not be obligated pursuant to Section 2.17(a) hereofto gross-up payments to be made to a Lender in respect of Taxes imposed by theUnited States if such Lender has not provided to the Company the InternalRevenue Service Forms required to be provided to the Company pursuant to thisSection 2.17(b).  Notwithstandinganything to the contrary contained in the preceding sentence or elsewhere inthis Section 2.17, the Company agrees to pay additional amounts and toindemnify each Lender in the manner set forth in Section 2.17(a) (withoutregard to the identity of the jurisdiction requiring the deduction orwithholding) in respect of any amounts deducted or withheld by it as describedin the immediately preceding sentence as a result of any changes after theClosing Date in any applicable law, treaty, governmental rule, regulation,guideline or order, or in the interpretation thereof, relating to the deductingor 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 any additionalcosts or legal or regulatory burdens deemed by such Lender in its solediscretion to be material.

 

(d)           If the Company pays any additionalamount pursuant to this Section 2.17 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 Company an amount that suchLender reasonably determines is equal to the net tax benefit obtained by suchLender as a result of such payment by the Company.  In the event that no refund or credit is obtained with respect toa Company’s payments to such Lender pursuant to this Section 2.17, then suchLender shall upon request provide a certification that such Lender has notreceived a refund or credit for such payments. Nothing contained in this Section 2.17 shall require a Lender todisclose or detail the basis of its calculation of the amount of any taxbenefit or any other amount or the basis of its

 

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determination referred to in the proviso to the first sentence of thisSection 2.17(d) to the Company or any other party.

 

(e)           If any Lender entitled to additional compensationunder any of the foregoing provisions of this Section 2.17 shall fail todesignate a different Applicable Lending Office as provided in subsection (c)of this Section 2.17 promptly after receiving notice from Company, then Companymay cause such Lender to (and, if Company so demands, such Lender shall) assignall of its rights and obligations under this Credit Agreement or any Note toone or more other persons identified by Company and reasonably acceptable tothe 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 2.17 in excess of the amounts that would have been payable to theassignor Lender prior to such assignment.

 

(g)           The agreements in this Section 2.17shall survive the termination of this Credit Agreement and the payment of the Borrower Obligations.

 

# **ARTICLE IIIREPRESENTATIONS AND WARRANTIES**

 

To induce the Lenders toenter into this Credit Agreement and to make the Extensions of Credit hereinprovided for, the Company hereby represents and warrants to the AdministrativeAgent and to each Lender that:

 

## **Section 3.1            Existence.**

 

The Company is a corporation duly formed,validly existing and in good standing under the laws of its jurisdiction ofincorporation, has all requisite power and authority, and the legal right, toown, operate and lease its properties and to carry on the business in which itis engaged or presently proposes to engage, and is duly qualified or licensedunder the laws of each jurisdiction where it is required to be so qualified orlicensed except where the failure to be so qualified could not, individually orin the aggregate, reasonably be expected to cause a Material Adverse Change,and is in compliance with all Requirements of Law except to the extent thatfailure to comply therewith could not, individually or in the aggregate,reasonably be expected to cause a Material Adverse Change.

 

## **Section3.2            Power and Authorization;Enforceable Obligations.**

 

The Company has all requisite power andauthority to execute, deliver and perform this Credit Agreement and the otherCredit Documents to which it is a party and to borrow the Loans hereunder.  The Company has taken all necessarycorporate and legal action to authorize the borrowings hereunder on the termsand conditions of this Credit Agreement and the other Credit Documents to whichit is a party and to authorize the execution, delivery and performance of this

 

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Credit Agreement and the other Credit Documents to which it is aparty.  Each of the Credit Agreement andthe other Credit Documents have been executed and delivered by a dulyauthorized officer of the Company.  ThisCredit Agreement constitutes, and upon execution thereof, each other CreditDocument will constitute a legal, valid and binding obligation of the Companyenforceable against the Company 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.

 

## **Section3.3            No Legal Bar to Loans.**

 

The execution, delivery and performance ofthis Credit Agreement and the other Credit Documents by the Company will notviolate any provision of any existing law, treaty or regulation or of anyorder, judgment, award or decree of any court, arbitrator or GovernmentalAuthority or of any Requirement of Law or Contractual Obligation applicable tothe Company and will not result in the creation or imposition of any Lien onany of the material properties or assets of the Company pursuant to theprovisions of any such Requirement of Law or Contractual Obligation; except, tothe extent such violation or Lien could not individually or in the aggregate,reasonably be expected to cause a Material Adverse Change.

 

## **Section3.4            Financial Information;Disclosure, etc.**

 

The Periodical SEC Reports of the Companyand the related statements of income, shareholders’ equity and cash flows forany applicable period, copies of which have heretofore been furnished to theAdministrative Agent and the Lenders, present fairly in all material respectsthe financial condition of the Company as of the end of such period.  All financial statements included therein,including the related schedules and notes, if any, have been prepared inaccordance with GAAP applied consistently throughout the periods involved,except as set forth in the notes thereto (subject, in the case of any interimfinancial statements, to normal year-end adjustments).  Since December 31, 2003, there has beenno Material Adverse Change.

 

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

 

No material authorizations, licenses andpermits of any Governmental Authority are required or necessary for the conductof the business of the Company as now conducted or proposed to be conducted byit 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.

 

## **Section3.6            Tax Returns and Payments.**

 

The Company has filed all tax returns andinformation statements required by law to be filed and has paid all taxes,assessments and other governmental charges levied upon or in respect of any ofits properties, assets, income, licenses or franchises, other than those notyet delinquent, those not substantial in aggregate amount, those being or aboutto be contested and

 

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those the failure of which to pay could not reasonably beexpected to cause a Material Adverse Change. The charges, accruals and reserves on the books of the Company inrespect of its taxes are adequate in the opinion of the Company, and theCompany knows of no unpaid assessment for additional taxes material in amountor of any reasonable basis therefor.  Notax liens have been filed, and, to the knowledge of the Company, no claims arebeing asserted with respect to any such taxes, fees or other charges.

 

## **Section3.7            Title to Properties;Liens.**

 

The Company and its Subsidiaries havesufficient title to all of its material properties and assets for the conductof its respective business as presently conducted and proposed to be conductedby them.  The Company and itsSubsidiaries enjoy quiet possession under all material real property leases towhich it is a party as lessee, and all of its material leases are valid,subsisting and in full force and effect.

 

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

 

Except as disclosed in the Periodical SECReports of the Company or in any report on Form 8-K filed by the Company withthe SEC, there is no action, proceeding or investigation pending or, to theknowledge of the Company, threatened (or any basis therefor known to theCompany) which questions the validity of this Credit Agreement or the otherCredit Documents executed in connection herewith, or any action taken or to betaken pursuant hereto or thereto, or which could reasonably be expected toresult, individually or in the aggregate, in a Material Adverse Change.

 

## **Section 3.9            No Default.**

 

No Default or Event of Default has occurredand is continuing.  Neither the Companynor any of its Subsidiaries is in violation of any Requirement of Law or anyterm of any Contractual Obligation applicable to the Company or suchSubsidiary, the violation of which could reasonably be expected to cause aMaterial Adverse Change.  Withoutlimiting the scope of the foregoing, the Company and its Subsidiaries are incompliance in all material respects with all Environmental Laws, the violationof which could be reasonably expected to cause a Material Adverse Change.

 

## **Section3.10         Governmental and OtherConsents.**

 

The Company is not required to obtain any order,consent, approval or authorization of or to make any declaration or filingwith, any Governmental Authority or any other Person in connection with theexecution and delivery, of and performance under, this Credit Agreement and theother Credit Documents, unless the failure to do so could not reasonably beexpected to cause a Material Adverse Change.

 

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## **Section 3.11         Regulation U, etc.**

 

Except for systematic stock repurchaseprograms from time to time conducted by the Company, none of the proceeds ofthe Loans will be used, directly or indirectly, by the Company for the purposeof purchasing or carrying, or for the purpose of reducing or retiring anyIndebtedness which was originally incurred to purchase or carry, any marginstock or for any other purpose which might constitute the transactionscontemplated hereby a “purpose credit” within the meaning of said Regulation U,or cause this Agreement to violate Regulation T, Regulation U, Regulation X, orany other regulation of the Board of Governors of The Federal Reserve System orthe Exchange Act.

 

## **Section3.12         Investment Company Act;Other Regulations.**

 

The Company is not an “investment company”or a company “controlled” by an “investment company”, within the meaning of theInvestment Company Act of 1940, as amended. The Company is not subject to regulation under any federal, state orother statute or regulation which limits its ability to incur Indebtedness.

 

## **Section3.13         Compliance with ERISA.**

 

Each Plan is in substantial compliance withERISA and the Code; no Reportable Event has occurred with respect to a Plan; noPlan is insolvent or in reorganization; no Plan has an unfunded currentliability within the meaning of Section 412(1)(8) of the Code; no Plan has anaccumulated or waived funding deficiency, has permitted decreases in itsfunding standard account or has applied for a waiver of the minimum fundingstandard or an extension of any amortization period within the meaning ofSection 412 of the Code; all contributions required to be made with respect toa Plan have been timely made, neither the Company nor any ERISA Affiliate hasincurred any material liability to or on account of a Plan pursuant to Section409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISAor Section 401(a)(29), 4971, 4975 or 4980 of the Code or reasonably expects toincur any material liability (including any indirect, contingent or secondaryliability) under any of the foregoing Sections with respect to any Plan (otherthan liabilities of any ERISA Affiliate which could not, by operation of law orotherwise, become a liability of the Company); no proceedings have beeninstituted to terminate, or to appoint a trustee to administer, any Plan; nocondition exists which presents a material risk to the Company or any ERISAAffiliate of incurring a liability to or on account of a Plan pursuant to theforegoing provisions of ERISA and the Code; using actuarial assumptions andcomputation methods consistent with Part I of Subtitle E of Title IV of ERISA,the aggregate liabilities of the Company and its ERISA Affiliates to all Planswhich are multi-employer plans (as defined in Section 4001(a)(3) of ERISA) inthe event of a complete withdrawal therefrom, as of the close of the mostrecent fiscal year of each such Plan ended prior to the Closing Date would notresult in a Material Adverse Change on the financial condition of the Company;and no lien imposed under the Code or ERISA on the assets of the Company or anyERISA Affiliate exists or is likely to arise on account of any Plan.  Anything in this Section 3.13 to thecontrary notwithstanding, the representations herein are qualified by theuncertainty created by the 2003 decision of the District Court for the SouthernDistrict of Illinois in Cooper v. IBM Personal Pension Plan that cashbalance pensions plans violate ERISA; however, there

 

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are no actions, suits or claims pending or, to the bestknowledge of the Company, threatened or anticipated (other than routine claimsfor benefits) against the Company or the cash balance pension plan maintainedby the Company.

 

## **Section3.14         Environmental Matters.**

 

To the best knowledge of the Company,except as disclosed in the Periodical SEC Reports of the Company or in anyreport 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 theCompany or any of the Company’s Subsidiaries (the “Properties”), exceptto the extent that the facts and circumstances giving rise to any such failureto be so true and correct could not, individually or in the aggregate,  reasonably be expected to cause a MaterialAdverse 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 beengenerated, treated, stored, disposed of, at, on or under any of the Properties,nor have any Hazardous Materials been transferred from the Properties to anyother location 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 other decrees,consent orders, administrative orders or other orders, or other administrativeor judicial requirements outstanding under any Environmental Law with respectto any of the Properties.

 

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# **ARTICLE IVCONDITIONS PRECEDENT**

 

## **Section4.1            Conditions to ClosingDate and Initial 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 and (iii) counterparts of the Three YearCredit Agreement, in each case conforming to the requirements of this CreditAgreement and executed by a duly authorized officer of each party thereto.

 

(b)           AuthorityDocuments.  The Administrative Agentshall have received the following:

 

(i)            Articles of Incorporation.  Copies of the articles of incorporation orother charter documents, as applicable, of the Company certified (A) by asecretary or assistant secretary of the Company (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 or organization,as applicable.

 

(ii)           Resolutions.  Copies of resolutions of the board ofdirectors or comparable managing body of the Company approving and adopting theCredit Documents, the transactions contemplated therein and authorizingexecution and delivery thereof, certified by a secretary or assistant secretaryof the Company (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.

 

(iii)          Bylaws.  A copy of the bylaws or comparable operatingagreement of the Company certified by a secretary or assistant secretary of theCompany (pursuant to a secretary’s certificate in substantially the form of Schedule 4.1(b)attached hereto) as of the Closing Date to be true and correct and in force andeffect as of such date.

 

(iv)          Good Standing.  Copies of (i) certificates of goodstanding, existence or its equivalent with respect to the Company certified asof a recent date by the appropriate Governmental Authorities of the state ofincorporation and each other state in which the failure to so qualify and be ingood standing could reasonably be expected to result in a Material AdverseChange on the business or operations of the Company and its Subsidiaries insuch state and (ii) a certificate

 

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indicating payment of allcorporate franchise taxes certified as of a recent date by the appropriategovernmental taxing authorities.

 

(v)           Incumbency.  An incumbency certificate of the Companycertified 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)           LegalOpinion of Counsel. The Administrative Agent shall have received an opinionof counsel for the Company, dated the Closing Date and addressed to theAdministrative Agent and the Lenders, which opinion shall provide that theCompany is 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’sCertificate.  The AdministrativeAgent shall have received a certificate executed by a Responsible Officer ofthe Company as of the Closing Date stating that immediately after giving effectto this Credit Agreement, the other Credit Documents, and all the transactionscontemplated therein to occur on such date, (i) no Default or Event ofDefault exists, (ii) all representations and warranties contained hereinand in the other Credit Documents are true and correct, and (iii) theCompany is in compliance with each of the financial covenants set forth inSection 6.6, as demonstrated by covenant calculations on a schedule attachedthereto.

 

(e)           AccountDesignation Letter.  TheAdministrative Agent shall have received the executed Account DesignationLetter in the form of Schedule 1.1 hereto.

 

(f)            Solvency Certificate.  The Administrative Agent shall have receivedan officer’s certificate for the Company prepared by the Responsible Officer asto the financial condition, solvency and related matters of the Company, ineach case after giving effect to the initial borrowings under the CreditDocuments, 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.

 

(i)            Fees.  The Administrative Agent and the Lendersshall have received all fees, if any, owing pursuant to the Fee Letter andSection 2.2.

 

(j)            Terminationof Existing Indebtedness.  Allexisting Indebtedness for borrowed money of the Company and the Company’sSubsidiaries with respect to the Bilateral Credit Agreements shall have been(or contemporaneously with funding will be)

 

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repaid in full andall commitments thereunder shall have been terminated and all Liens relatingthereto, if any, shall have been terminated.

 

(k)           CorporateStructure.  The corporate capitaland ownership structure of the Company shall be as described in the Form 10-Kof the Company for the year ended December 31, 2003.  The Administrative Agent and the Lenders shall be satisfied withthe corporate and capital structure of the Company and its Material Subsidiaries.

 

## **Section4.2            Conditions to AllExtensions of Credit.**

 

The obligation ofeach Lender to make any Extension of Credit hereunder is subject to thesatisfaction of the following conditions precedent on the date of making suchExtension of Credit:

 

(a)           Representationsand Warranties.  The representationsand warranties made by the Company herein, in the other Credit Documents orwhich are contained in any certificate furnished at any time under or inconnection herewith shall be true and correct on and as of the date of suchExtension of Credit as if made on and as of such date, unless stated to relatesolely to an earlier date, in which case such representations and warrantiesshall be true and correct as of such earlier date.

 

(b)           NoDefault or Event of Default.  NoDefault or Event of Default shall have occurred and be continuing on such dateor after giving effect to the Extension of Credit to be made on such dateunless such Default or Event of Default shall have been waived in accordancewith this Credit Agreement or other applicable instrument or agreement.

 

(c)           Compliancewith Commitments.  Immediately aftergiving effect to the making of any such Extension of Credit (and theapplication of the proceeds thereof), the sum of outstanding Revolving Loans shallnot exceed the Aggregate Revolving Committed Amount.

 

(d)           AdditionalConditions to Revolving Loans.  If aRevolving Loan is requested, all conditions set forth in Section 2.1 shallhave been satisfied.

 

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

 

 

# **ARTICLE VAFFIRMATIVE COVENANTS**

 

The Company herebycovenants and agrees that on the Closing Date, and thereafter for so long asthis Credit Agreement is in effect and until the Revolving Commitments haveterminated,

 

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no Note remainsoutstanding and unpaid and the BorrowerObligations, together with interest, Commitment Fee, are paid in full,the Company shall:

 

## **Section5.1            Financial Information.**

 

Furnish to the Administrative Agent andeach 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 quarterly fiscal period andstatements of earnings and cash flow of the Company and its Subsidiaries on aconsolidated 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’s Form10-K containing a copy of the annual audit report for such fiscal year for theCompany and its Subsidiaries on a consolidated basis, including balance sheetsof the Company and its Subsidiaries on a consolidated basis as of the end ofsuch 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 fromthe Responsible Officer of the Company certifying whether there exists anyDefault or Event of Default, and setting forth the Leverage Ratio and the FixedCharge Coverage 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            Use of Proceeds.**

 

Use the proceeds of Loans for the generalcorporate purposes of the Company, including, without limitation, therepurchase of the Company’s shares.

 

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## **Section5.3            Payment of BorrowerObligations.**

 

If and to the extent the failure to do socould reasonably be expected to cause a Material Adverse Change, pay, dischargeor otherwise satisfy at or before maturity or before they become delinquent, asthe case may be, all its Indebtedness and other obligations of whatever nature,except where the amount or validity thereof is currently being contested ingood faith by appropriate proceedings and reserves in conformity with GAAP withrespect thereto have been provided on the books of the Company; and cause eachof its Subsidiaries so to do.

 

## **Section5.4            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 a consolidated basis, adequateinsurance coverage on all its properties, with financially sound and reputableinsurance companies.

 

## **Section 5.6            Books and Records.**

 

Keep proper books of records and account inwhich full, true and correct entries in conformity with GAAP and allRequirements of Law shall be made of all dealings and transactions in relationto its business and activities.

 

## **Section 5.7            Notices.**

 

Promptly, upon gaining actual knowledgethereof, give notice to the Administrative Agent and each Lender of

 

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

 

(b)           any Material Adverse Change;provided, however, that the Company shall not be required to give notice underthis paragraph (b) unless such change requires the Company to file areport on Form 8-K with the SEC.

 

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Each notice pursuant to this subsectionshall be accompanied by a statement of a Responsible Officer setting forthdetails of the occurrence referred to therein and stating what action (if any)the Company proposes to take with respect thereto.

 

## **Section 5.8            Payment of Taxes.**

 

If and to the extent the failure to do anyof the following could, individually or in the aggregate, reasonably beexpected to cause a Material Adverse Change, pay and discharge, and cause eachSubsidiary to pay and discharge, prior to their becoming delinquent all taxes,assessments and other governmental charges or levies imposed upon it or itsincome or upon any of its property or assets, or upon any part thereof, as wellas all lawful claims of any kind (including claims for labor, materials andsupplies) which, if unpaid, might by law become a Lien upon its property;provided, that neither the Company nor any Subsidiary will be required to payany such tax, assessment, charge, levy or claim if the amount, applicability orvalidity thereof shall be contested in good faith by appropriate proceedings orother appropriate actions diligently conducted and if the Company or anySubsidiary shall have set aside on its books such reserves, if any, withrespect thereto as are required by GAAP and deemed appropriate by the Companyand its independent public accountants.

 

## **Section5.9            Further Assurances.**

 

From time to time hereafter, execute anddeliver, or cause to be executed and delivered, such additional instruments,certificates or documents, and will take all such actions, as theAdministrative Agent or any Lender may reasonably request, for the purposes ofimplementing or effectuating the provisions of the Credit Documents.  Upon the exercise by the AdministrativeAgent or any Lender of any power, right, privileges or remedy pursuant to theCredit Documents, which requires any consent, approval, recording,qualification or authorization of any Governmental Authority, the Company willexecute and deliver, or will cause the execution and delivery of, allapplications, certifications, instruments and other documents and papers thatthe Administrative Agent or any Lender may be required to obtain from theCompany for such governmental consent, approval, recording, qualification orauthorization.

 

## **Section5.10         No Dividend Restrictions.**

 

Neither the Company nor any wholly ownedMaterial Subsidiaries are a party to, nor will the Company or any wholly ownedMaterial Subsidiaries become a party to any agreement prohibiting orrestricting the payment of dividends.

 

# **ARTICLE VINEGATIVE COVENANTS**

 

The Company herebycovenants and agrees that on the Closing Date, and thereafter for so long asthis Credit Agreement is in effect and until the Revolving Commitments haveterminated, no Note remains outstanding and unpaid and the BorrowerObligations, together with interest,

 

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Commitment Fee and allother amounts owing to the Administrative Agent or any Lender hereunder, arepaid in full that:

 

## **Section6.1            Limitation on Liens.**

 

The Company will not, nor will it permit anySubsidiary to, create, assume, incur or suffer to exist any Lien on any assetnow owned or hereafter acquired by it, except for the following:

 

(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 (i)increase the Indebtedness secured thereby or (ii) extend the coverage thereofbeyond the original 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;

 

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(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.

 

It being agreed that nothing in thisSection shall be deemed to directly or indirectly limit any lien that theCompany or any of its Subsidiaries may grant to any other Person on any marginstock (within the meaning of Regulation U of the Board of Governors of theFederal Reserve System) owned thereby to the extentsuch limitation could result in the view that the Borrower Obligationshereunder are directly or indirectly secured by such margin stock.

 

## **Section6.2            Dissolutions and Mergers.**

 

The Company shall not merge into or consolidatewith or into any corporation or entity, unless, after giving effect to suchmerger or consolidation (a) the Company is the surviving corporation, and (b)no Default or Event of Default has occurred and is continuing or would resulttherefrom.

 

## **Section6.3            Disposition of Assets.**

 

The Company shall not, and shall not permitany of its Subsidiaries to, convey, sell, assign, lease, transfer or disposeall or any portion of its assets (including accounts receivable and CapitalStock of Subsidiaries) to any Person in a single transaction or in a series oftransactions, 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

 

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numerator is the aggregate number of sharesof Capital Stock of such Subsidiary issued or disposed of in such Sale and thedenominator is the aggregate number of shares of Capital Stock of suchSubsidiary 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 that nothing in thisSection shall be deemed to directly or indirectly limit any sale by the Companyor any of its Subsidiaries to any other Person of margin stock (within themeaning of Regulation U of the Board ofGovernors of the Federal Reserve System) to the extent such limitation couldresult in the view that the Borrower Obligations hereunder are directly orindirectly secured by such margin stock.

 

## **Section6.4            Conduct of Business.**

 

The Company shall not make or permit to bemade any material change in the character of its business as carried on theClosing Date.

 

## **Section6.5            Compliance with FederalReserve Regulations.**

 

Except for systematic stock repurchaseprograms from time to time conducted by the Company, the Company shall not useany part of the proceeds of any credit extended under this Credit Agreement orthe other Credit Documents to purchase or carry, or to reduce or retire anyIndebtedness incurred to purchase or carry, any margin stock (as defined inRegulation U of the Board of Governors of the Federal Reserve System) or toextend credit to any Person for the purpose of purchasing or carrying anymargin stock.

 

## **Section6.6            Financial Covenants.**

 

The Company will not permit (a) theLeverage Ratio to exceed at any time 2.50 to 1.00 or (b) the Fixed ChargeCoverage Ratio to be less than at any time 2.00 to 1.00.

 

## **Section6.7            Subsidiary Indebtedness.**

 

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

 

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# **ARTICLE VIIEVENTS OF DEFAULT**

 

## **Section 7.1            Events of Default.**

 

An Event ofDefault shall exist upon the occurrence of any of the following specifiedevents (each an “Event of Default”):

 

(a)           TheCompany shall fail to pay any principal on any Note when due in accordance withthe terms thereof or hereof; or the Company shall fail to pay any interest onany Note or any fee or other amount payable hereunder when due in accordancewith the terms thereof or hereof and such failure shall continue unremedied forfive (5) days; or

 

(b)           Anyrepresentation or warranty made or deemed made herein or in any of the otherCredit Documents or which is contained in any certificate, document orfinancial or other statement furnished at any time under or in connection withthis Credit Agreement shall prove to have been incorrect, false or misleadingin any material respect on or as of the date made or deemed made; or

 

(c)           (i) TheCompany shall fail to perform, comply with or observe any term, covenant oragreement applicable to it contained in Section 5.1, 5.2, 5.4(a),Section 5.7 or Article VI hereof; or (ii) the Company shalldefault on any other covenant, contained in this Credit Agreement or the otherCredit Documents or any other agreement, document or instrument among the Company,the Administrative Agent and the Lenders or executed by the Company in favor ofthe Administrative Agent or the Lenders (other than as described in Sections7.1(a) or 7.1(c)(i) above), and in the event such breach or failure to complycontinues for thirty (30) days of its occurrence after the earlier of aResponsible Officer becoming aware of such default or the receipt by theCompany of written notice of such default from the Administrative Agent; or

 

(d)           TheCompany or any of its Subsidiaries shall (i) default in any payment ofprincipal of or interest on any Indebtedness of the Company or any of itsSubsidiaries (other than the Notes) in a principal amount outstanding of atleast $10,000,000 in the aggregate beyond the period of grace (not to exceed30 days), if any, provided in the instrument or agreement under which suchIndebtedness was created; or (ii) default in the observance or performanceof any other agreement or condition relating to any Indebtedness the Company orany of its Subsidiaries in a principal amount outstanding of at least$10,000,000 in the aggregate or contained in any instrument or agreementevidencing, securing or relating thereto, or any other event shall occur orcondition exist, in each case, the effect of which default or other event or conditionis to cause, or to permit the holder or holders of such Indebtedness orbeneficiary or beneficiaries of such Indebtedness (or a trustee or agent onbehalf of such holder or holders or beneficiary or beneficiaries) to cause,with the giving of notice if required, such Indebtedness to become due prior toits stated maturity; or

 

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(e)           TheCompany or any Material Subsidiary shall (i) become insolvent or generally failto pay, or admit in writing its ability or unwillingness to pay, debts as theybecome due; (ii) apply for, consent to or acquiesce in the appointment of atrustee, receiver, sequestrator or other custodian for the Company or anyMaterial Subsidiary or any substantial part of the property thereof, or make ageneral assignment for the benefit of creditors; (iii) in the absence of suchapplication, consent or acquiescence, permit or suffer to exist the appointmentof a trustee, receiver, sequestrator or other custodian for the Company or anyMaterial Subsidiary or for a substantial part of the property thereof, and suchtrustee, receiver, sequestrator or other custodian shall not be dischargedwithin 60 days; (iv) permit or suffer to exist the commencement of anybankruptcy, reorganization, debt arrangement or other case or proceeding underany bankruptcy or insolvency law, or any dissolution, winding up or liquidationproceeding, in respect of the Company or any Material Subsidiary and, if anysuch case or proceeding shall be consented to or acquiesced in by the Companyor any Material Subsidiary or shall result in the entry of an order for reliefor shall remain for sixty (60) days undismissed; or (v) take any actionauthorizing, or in furtherance of, any of the foregoing; or

 

(f)            Anyjudgment or order shall be entered against the Company or any of the MaterialSubsidiaries involving a liability (to the extent not covered by insurance) of$10,000,000 or more and such judgment or order shall not be paid or otherwisesatisfied, and either (i) enforcement proceedings shall have been commenced byany creditor upon such judgment or order, or (ii) there shall be any period often (10) consecutive days during which a stay of enforcement of suchjudgment or order, by reason of a pending appeal or otherwise, shall not be ineffect; or

 

(g)           AnyPlan shall fail to satisfy the minimum funding standard required for any planyear or part thereof or a waiver of such standard or extension of anyamortization period is sought or granted under Section 412 of the Code, anyPlan shall have had or is likely to have a trustee appointed to administer suchPlan, any Plan is, shall have been or is likely to be terminated or the subjectof termination proceedings under ERISA, any Plan shall have an Unfunded CurrentLiability, a contribution required to be made to a Plan or a foreign pensionplan has not been timely made or the Company, any Subsidiary or any ERISAAffiliate has incurred or is likely to incur a liability to or on account of aPlan under Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204or 4212 of ERISA or Section 401 (a)(29), 4971, 4975 or 4980 of the Code (ii)there shall result from any such event or events the imposition of a Lien, thegranting of a security interest, or a liability or a material risk of incurringa liability, and (iii) which Lien, security interest or liability, individuallyand/or in the aggregate, in the opinion of the Administrative Agent or anyLender will cause a Material Adverse Change; or

 

(h)           Thereshall occur a Change of Control.

 

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## **Section7.2            Acceleration; Remedies.**

 

Upon theoccurrence of an Event of Default, then, and in any such event, (a) ifsuch event is an Event of Default specified in Section 7.1(e) above, automaticallythe Revolving Commitments shall immediately terminate and the Loans (withaccrued interest thereon), and all other amounts under the Credit Documentsshall immediately become due and payable, and (b) if such event is anyother 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 Company declare the Revolving Commitments to be terminatedforthwith, whereupon the Revolving Commitments shall immediately terminate; and(ii) with the written consent of the Required Lenders, the AdministrativeAgent may, or upon the written request of the Required Lenders, theAdministrative Agent shall, by notice of default to the Company, declare theLoans (with accrued interest thereon) and all other amounts owing under thisCredit Agreement and the Notes to be due and payable forthwith.

 

# **ARTICLE VIIITHE 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.

 

## **Section8.2            Delegation of Duties.**

 

The AdministrativeAgent may execute any of its duties under this Credit Agreement by or throughagents or attorneys-in-fact and shall be entitled to advice of counselconcerning all matters pertaining to such duties.  The Administrative Agent shall not be responsible for thenegligence or misconduct of any agents or attorneys-in-fact selected by it withreasonable care.  Without limiting theforegoing, the Administrative Agent may appoint one of its affiliates as itsagent to perform its the functions of the Administrative Agent hereunderrelating to the advancing of funds to the Company and distribution of funds tothe Lenders and to perform such other related functions of the AdministrativeAgent hereunder as are reasonably incidental to such functions.

 

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## **Section8.3            Exculpatory Provisions.**

 

Neither theAdministrative Agent nor any of the 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 Company or any officer thereof contained in this CreditAgreement or in any certificate, report, statement or other document referredto or provided for in, or received by the Administrative Agent under or inconnection with, this Credit Agreement or for the value, validity,effectiveness, genuineness, enforceability or sufficiency of any of the CreditDocuments or for any failure of the Company 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 Company ofany of the agreements contained in, or conditions of, this Credit Agreement, orto inspect the properties, books or records of the Company.

 

## **Section8.4            Reliance by theAdministrative Agent.**

 

The AdministrativeAgent shall be entitled to rely, and shall be fully protected in relying, uponany Credit 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 faithto be genuine and correct and to have been signed, sent or made by the properPerson or Persons and upon advice and statements of legal counsel (including,without limitation, counsel to the Company), 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 writtenagreement of such assignee to be bound hereby as fully and to the same extentas if such assignee 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 of the Lenders as maybe required 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 shallsubject to Section 8.3, be fully protected in acting, or in refrainingfrom acting, under any of the Credit Documents in accordance with a request ofthe Required Lenders or all of the Lenders, as may be required under thisCredit Agreement, and such request and any action taken or failure to actpursuant thereto shall be binding upon all the Lenders and all future holdersof the Notes.

 

## **Section 8.5            Notice of Default.**

 

The AdministrativeAgent shall not be deemed to have knowledge or notice of the occurrence of anyDefault or Event of Default hereunder unless the Administrative Agent hasreceived notice from a Lender or a Company referring to this Credit Agreement,describing such

 

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Default or Event ofDefault and stating that such notice is a “notice of default”.  In the event that the Administrative Agentreceives such a notice, the Administrative Agent shall give prompt noticethereof to the Lenders.  TheAdministrative Agent shall take such action with respect to such Default orEvent of Default as shall be reasonably directed by the Required Lenders or allLenders, as applicable; provided, however, that unless and untilthe Administrative Agent shall have received such directions, theAdministrative Agent may (but shall not be obligated to) take such action, orrefrain 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.

 

## **Section8.6            Non-Reliance on theAdministrative Agent and Other Lenders.**

 

Each Lenderexpressly acknowledges that neither the Administrative Agent nor any of itsofficers, directors, employees, agents, attorneys-in-fact or affiliates hasmade any representation or warranty to it and that no act by the AdministrativeAgent hereinafter taken, including any review of the affairs of the Company,shall be deemed to constitute any representation or warranty by theAdministrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has,independently and without reliance upon the Administrative Agent or any otherLender, and based on such documents and information as it has deemedappropriate, made its own appraisal of and investigation into the business,operations, property, financial and other condition and creditworthiness of theCompany and made its own decision to make its Loans hereunder and enter into thisCredit Agreement.  Each Lender alsorepresents that it will, independently and without reliance upon theAdministrative Agent or any other Lender, and based on such documents andinformation as it shall deem appropriate at the time, continue to make its owncredit analysis, appraisals and decisions in taking or not taking action underthis Credit Agreement, and to make such investigation as it deems necessary toinform itself as to the business, operations, property, financial and othercondition and creditworthiness of the Company. 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 Company 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 agreeto indemnify the Administrative Agent in its capacity as such hereunder (to theextent not reimbursed by the Company and without limiting the obligation of theCompany to do so), ratably according to their respective Commitment Percentagesin effect on the date on which indemnification is sought under this Section,from and against any and all liabilities, obligations, losses, damages,penalties, actions, judgments, suits, costs, expenses or disbursements of anykind whatsoever which may at any time (including, without limitation, at anytime following the payment of the Notes) be imposed on, incurred by or assertedagainst the Administrative Agent in any way relating to or arising out of anyCredit Document or any documents contemplated by or referred to herein ortherein or the transactions contemplated

 

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hereby or thereby or anyaction taken or omitted by the Administrative Agent under or in connection withany of the foregoing; provided, however, that no Lender shall beliable for the payment of any portion of such liabilities, obligations, losses,damages, penalties, actions, judgments, suits, costs, expenses or disbursementsto the extent resulting from the Administrative Agent’s gross negligence orwillful misconduct, as determined by a court of competent jurisdiction.  The agreements in this Section 8.7shall survive the termination of this Credit Agreement and payment of the Notesand all other amounts payable hereunder.

 

## **Section8.8            Administrative Agent inits Individual Capacity.**

 

The AdministrativeAgent and its affiliates may make loans to, accept deposits from and generallyengage in any kind of business with the Company as though the AdministrativeAgent was not an Administrative Agent hereunder.  With respect to its Loans made or renewed by it and any Noteissued to it, the Administrative Agent shall have the same rights and powersunder this Credit Agreement as any Lender and may exercise the same as thoughit were not the Administrative Agent, and the terms “Lender” and “Lenders”shall include the Administrative Agent in its individual capacity.

 

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

 

The AdministrativeAgent may resign as Administrative Agent upon 30 days’ prior notice to theCompany 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 formerAdministrative Agent or any of the parties to this Credit Agreement or anyholders of the Notes.  After anyretiring Administrative Agent’s resignation as Administrative Agent, theprovisions of this Section 8.9 shall inure to its benefit as to anyactions taken or omitted to be taken by it while it was Administrative Agentunder this Credit Agreement.

 

## **Section 8.10         Nature of Duties.**

 

Except as otherwise expressly stated herein, any agent(other than the Administrative Agent) or arranger listed from time to time onthe cover page of this Credit Agreement shall have no obligations,responsibilities or duties under this Credit Agreement or under any otherCredit Document other than obligations, responsibilities and duties applicableto all Lenders in their capacity as Lenders; provided, however, that such agentsand arrangers shall be entitled to the same rights, protections, exculpationsand indemnifications granted to the Administrative Agent under thisArticle VIII in their capacity as an agent or arranger.

 

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**Section8.11         Other Agents; Arrangers.**

 

Except asotherwise expressly stated herein, any agent (other than the AdministrativeAgent) or arranger listed from time to time on the cover page of this CreditAgreement shall have no obligations, responsibilities or duties under thisCredit Agreement 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 same rights, protections, exculpations and indemnifications granted to theAdministrative Agent under this Article VIII in their capacity as an agentor arranger.

 

# **ARTICLE IXMISCELLANEOUS**

 

## **Section9.1            Amendments and Waivers.**

 

Neither thisCredit Agreement 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 Company written amendments, supplements or modifications hereto and tothe 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 Company 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)            reducethe amount or extend the scheduled date of maturity of any Loan or Note or anyinstallment thereon, or reduce the stated rate of any interest or fee payablehereunder (other than interest at the increased post-default rate) or extendthe scheduled date of any payment thereof or increase the amount or extend theexpiration date of any Lender’s Commitment, in each case without the writtenconsent of each Lender directly affected thereby, or

 

(ii)           amend,modify or waive any provision of this Section 9.1 or reduce the percentagespecified in the definition of Required Lenders, without the written consent ofall the Lenders, or

 

(iii)          amend,modify or waive any provision of Article VIII without the written consentof the then Administrative Agent, or

 

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

 

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(v)           amend,modify or waive any provision of the Credit Documents affecting the rights orduties of the Administrative Agent under any Credit Document without thewritten consent of the Administrative Agent, in addition to the Lendersrequired hereinabove to take such action;

 

(vi)          amendor modify the definition of Borrower Obligations to delete or exclude anyobligation or liability described therein without the written consent of eachLender and each Hedging Agreement Provider directly affected thereby; or

 

(vii)         amend,modify or waive any provision of Section 2.8 in a manner that would alter thepro rata share of payments required thereby without the written consent of eachLender directly affected thereby.

 

Any such waiver,amendment, supplement or modification and any such release shall apply equallyto each of the Lenders and shall be binding upon the Company, the Lenders, theAdministrative Agent and all future holders of the Notes.  In the case of any waiver, the Company, theLenders and the Administrative Agent shall be restored to their former positionand rights hereunder and under the outstanding Loans and Notes and other CreditDocuments, and any Default or Event of Default waived shall be deemed to becured and not continuing; but no such waiver shall extend to any subsequent or otherDefault or Event of Default, or impair any right consequent thereon.

 

Notwithstandingany of the foregoing to the contrary, the consent of the Company 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 Company 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 Company, 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 Company and each Lender.

 

Notwithstandingthe fact that the consent of all the Lenders is required in certaincircumstances as set forth above, (x) each Lender is entitled to vote as suchLender sees fit on any bankruptcy reorganization plan that affects the Loans,and each Lender acknowledges that the provisions of Section 1126(c) of theBankruptcy Code supersedes the unanimous consent provisions set forth hereinand (y) the Required Lenders may consent to allow the Company to use cashcollateral in the context of a bankruptcy or insolvency proceeding.

 

## **Section 9.2            Notices.**

 

Except asotherwise provided in Article II, all notices, requests and demands to orupon the respective parties hereto to be effective shall be in writing(including by telecopy), and, unless otherwise expressly provided herein, shallbe deemed to have been duly given or made (a) when delivered by hand,(b) when transmitted via telecopy (or other facsimile device) to the

 

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number set out herein,(c) the Business Day immediately following the day on which the same hasbeen delivered prepaid to a reputable national overnight air courier service,or (d) the third Business Day following the day on which the same is sentby certified or registered mail, postage prepaid, in each case, addressed asfollows in the case of the Company and the Administrative Agent, and as setforth on 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                                       |
|--------------------|---------------------------------------------------------------|
|               | 1499 Post Road                                                |
|               | 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 |

 

## **Section9.3            No Waiver; CumulativeRemedies.**

 

No failure toexercise and no delay in exercising, on the part of the Administrative Agent orany Lender, 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.

 

## **Section9.4            Payment of Expenses andTaxes.**

 

The Company agrees(a) to pay or reimburse the Administrative Agent and the Arranger for all theirreasonable and documented out-of-pocket costs and expenses incurred in connectionwith the development, preparation, negotiation, printing and execution of, andany amendment, supplement or modification to, this Credit Agreement and theother Credit Documents and any

 

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other documents preparedin connection herewith or therewith, and the consummation and administration ofthe transactions contemplated hereby and thereby, together with the reasonablefees and disbursements of counsel to the Administrative Agent and the Arranger,(b) to pay or reimburse each Lender and the Administrative Agent for all itscosts and expenses incurred in connection with the enforcement or preservationof any rights under this Credit Agreement and the other Credit Documents,including, without limitation, the reasonable fees and disbursements of counselto the Administrative Agent and to the Lenders, and (c) on demand, to pay,indemnify, and hold each Lender and the Administrative Agent harmless from, anyand all recording and filing fees and any 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 or determined to be payable in connection with theexecution and delivery of, or consummation or administration of any of thetransactions contemplated by, or any amendment, supplement or modification of,or any waiver or consent under or in respect of, the Credit Documents and anysuch other documents, and (d) to pay, indemnify, and hold each Lender and theAdministrative Agent and their Affiliates harmless from and against, any andall other liabilities, obligations, losses, damages, penalties, actions,judgments, suits, costs, expenses or disbursements of any kind or naturewhatsoever with respect to the execution, delivery, enforcement, performanceand administration of the Credit Documents and any such other documents and theuse, or proposed use, of proceeds of the Loans (all of the foregoing,collectively, the “indemnified liabilities”); provided, however,that the Company shall not have any obligation hereunder to any Agent or anyLender or any Affiliate thereof with respect to indemnified liabilities to theextent (i) arising from the gross negligence or willful misconduct of theAdministrative Agent or any such Lender or any such Affiliate, as determined bya court of competent jurisdiction or (ii) relating to disputes among anyLender or Affiliate thereof and the Administrative Agent or one or more otherLender or Affiliate thereof unless such dispute is related to this CreditAgreement or the Extensions of Credit hereunder.  The Company shall not be required to indemnify any IndemnifiedParty for any amount paid or payable to any Indemnified Party in the compromiseor settlement of any action, proceeding or investigation without the priorwritten consent of the Company, which consent shall not be unreasonablywithheld.  Promptly after receipt by an Indemnified Party of notice of itsinvolvement in any action, proceeding or investigation, such Indemnified Partyshall, if a claim for indemnification in respect thereof is to be made againstthe Company under this Credit Agreement, promptly notify the Company in writingof such involvement.  Failure by theIndemnified Party to so notify the Company shall not relieve the Company fromthe obligation to indemnify the Indemnified Party under this Credit Agreementexcept to the extent that the Company suffers actual prejudice as a result ofsuch failure, and shall not relieve the Company from its obligation to providereimbursement and contribution to the Indemnified Party.** **It is acknowledged and agreed that each Indemnified Partyshall cooperate with the Company in good faith to coordinate a mutual defensestrategy and to enter into joint defense agreements and will use commerciallyreasonable efforts to minimize the costs thereof including, without limitation,(i) the delivery of periodic updates with respect to legal and other expensesincurred, (ii)  limiting the engagementof legal counsel to one law firm at any one time (excluding local counsel whichmay be engaged as deemed necessary by the Indemnified Party) and (iii) thetaking of such other measures in connection therewith as may be reasonablyrequested by the Company.** **Theagreements in this Section 9.4 shall survive repayment of the Loans and theBorrower Obligations.

 

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## **Section9.5            Successors and Assigns;Participations; Purchasing Lenders.**

 

(a)           ThisCredit Agreement shall be binding upon and inure to the benefit of the Company,the Lenders, the Administrative Agent, all future holders of the Notes andtheir respective successors and assigns, except that the Company may not assignor transfer any of their rights or obligations under this Credit Agreement orthe other Credit Documents without the prior written consent of each Lender;except to the extent any such assignment results from the consummation of amerger or consolidation permitted pursuant to Section 6.2 of this CreditAgreement.

 

(b)           AnyLender may, in the ordinary course of its commercial banking business and inaccordance with applicable law, at any time sell to one or more banks or otherentities (“Participants”) participating interests in any Loan owing tosuch Lender, any Note held by such Lender, any Commitment of such Lender, orany other interest of such Lender hereunder. In the event of any such sale by a Lender of participating interests toa Participant, such Lender’s obligations under this Credit Agreement to theother parties to this Credit Agreement shall remain unchanged, such Lendershall remain solely responsible for the performance thereof, such Lender shallremain the holder of any such Note for all purposes under this CreditAgreement, and the Company and the Administrative Agent shall continue to dealsolely and directly with such Lender in connection with such Lender’s rightsand obligations under this Credit Agreement. No Lender shall transfer or grant any participation under which theParticipant shall have rights to approve any amendment to or waiver of thisCredit Agreement or any other Credit Document except to the extent suchamendment or waiver would (i) extend the scheduled maturity of any Loan orNote or any installment thereon in which such Participant is participating, orreduce the stated rate or extend the time of payment of interest or feesthereon (except in connection with a waiver of interest at the increasedpost-default rate) or reduce the principal amount thereof, or increase theamount of the Participant’s participation over the amount thereof then ineffect (it being understood that a waiver of any Default or Event of Defaultshall not constitute a change in the terms of such participation, and that anincrease in any Commitment or Loan shall be permitted 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 Company ofany of its 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 Company hereunder shall be determined as if such Lender had not sold suchparticipation; provided that each Participant shall be entitled to thebenefits of Section 2.15, 2.16 and 2.17 with respect to its participationin the Revolving Commitments and the Loans outstanding from time to time; providedfurther, that no Participant shall be entitled to receive any greateramount pursuant to such Sections than the transferor Lender would have beenentitled to receive in respect of the amount of the participation transferredby such transferor Lender to such Participant had no such transfer occurred.

 

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(c)           AnyLender may, in the ordinary course of its commercial banking business and inaccordance with applicable law, at any time, sell or assign to any Lender orany Affiliate or Related Fund thereof and with the consent of theAdministrative Agent and, so long as no Event of Default has occurred and iscontinuing, the Company (in each case, which consent shall not be unreasonablywithheld or delayed), to one or more additional banks or financial institutionsor entities (“Purchasing Lenders”), all or any part of its rights andobligations under this Credit Agreement and the Notes in minimum amounts of$5,000,000 with respect to its Revolving Commitment and its Revolving Loans(or, if less, the entire amount of such Lender’s Revolving Commitment andRevolving Loans), pursuant to a Commitment Transfer Supplement, executed bysuch Purchasing Lender and such transferor Lender (and, in the case of aPurchasing Lender that is not then a Lender or an affiliate or Related Fundthereof, the Administrative Agent and, so long as no Event of Default hasoccurred and is continuing, the Company), and delivered to the AdministrativeAgent for its acceptance and recording in the Register; provided, however,that any sale or assignment to an existing Lender, or Affiliate or Related Fundthereof, shall not require the consent of the Administrative Agent or theCompany nor shall any such sale or assignment be subject to the minimumassignment 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 Agreement and theNotes.  On or prior to the TransferEffective Date specified in such Commitment Transfer Supplement, the Company,at its own expense, shall execute and deliver to the Administrative Agent inexchange for the Notes delivered to the Administrative Agent pursuant to suchCommitment Transfer Supplement  newNotes to the order of such Purchasing Lender in an amount equal to theRevolving Commitment assumed by it pursuant to such Commitment Transfer Supplementand, unless the transferor Lender has not retained a Commitment hereunder, newNotes to the order of the transferor Lender in an amount equal to the RevolvingCommitment retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be inthe form of the Notes replaced thereby.

 

(d)           TheAdministrative Agent shall maintain at its address referred to inSection 9.2 a copy of each Commitment Transfer Supplement delivered to itand a register (the “Register”) for the recordation of the names andaddresses of the Lenders and the Revolving Commitment of, and principal amountof the Loans owing to, each

 

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Lender from timeto time.  The entries in the Registershall be conclusive, in the absence of manifest error, and the Company, 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 Company or any Lender at anyreasonable time and from time to time upon reasonable prior notice.

 

(e)           Uponits receipt of a duly executed Commitment Transfer Supplement, together withpayment to the Administrative Agent by the transferor Lender or the PurchasingLender, as agreed between them, of a registration and processing fee of $3,500for each Purchasing Lender (other than an Affiliate of such Lender or a RelatedFund) listed in such Commitment Transfer Supplement and the Notes subject tosuch Commitment Transfer Supplement, the Administrative Agent shall(i) accept such Commitment Transfer Supplement, (ii) record theinformation contained therein in the Register and****(iii)** **give prompt notice ofsuch acceptance and recordation to the Lenders and the Company.

 

(f)            TheCompany authorize each Lender to disclose to any Participant or PurchasingLender (each, a “Transferee”) and any prospective Transferee any and allfinancial information in such Lender’s possession concerning the Company andits Affiliates which has been delivered to such Lender by or on behalf of theCompany pursuant to this Credit Agreement or which has been delivered to suchLender by or on behalf of the Company in connection with such Lender’s credit evaluationof the Company and its Affiliates prior to becoming a party to this CreditAgreement, in each case subject to Section 9.15.

 

(g)           Atthe time of each assignment pursuant to this Section 9.5 to a Person whichis not already a Lender hereunder and which is not a United States person(as such term is defined in Section 7701(a)(30) of the Code) for Federalincome tax purposes, the respective assignee Lender shall provide to theCompany and the Administrative Agent the appropriate Internal Revenue ServiceForms described in Section 2.17.

 

(h)           Nothingherein shall prohibit any Lender from pledging or assigning any of its rightsunder this Credit Agreement (including, without limitation, any right topayment of principal and interest under any Note) to any Federal Reserve Bankin accordance with applicable laws.

 

## **Section9.6            Adjustments; Set-off.**

 

(a)           EachLender agrees that if any Lender (a “benefited Lender”) shall at anytime receive any payment of all or part of its Loans, or interest thereon, orreceive any collateral in respect thereof (whether voluntarily orinvoluntarily, by set-off, pursuant to events or proceedings of the naturereferred to in Section 7.1(e), or otherwise) in a greater proportion thanany such payment to or collateral received by any other Lender, if any, inrespect of such other Lender’s Loans, or interest thereon, such benefitedLender shall purchase for cash from the other Lenders a participating interestin such portion of each

 

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such otherLender’s Loan, or shall provide such other Lenders with the benefits of anysuch collateral, or the proceeds thereof, as shall be necessary to cause suchbenefited Lender to share the excess payment or benefits of such collateral orproceeds ratably with each of the Lenders; provided, however,that if all or any portion of such excess payment or benefits is thereafterrecovered from such benefited Lender, such purchase shall be rescinded, and thepurchase price and benefits returned, to the extent of such recovery, butwithout interest.  The Company agreethat each Lender so purchasing a portion of another Lender’s Loans may exerciseall rights of payment (including, without limitation, rights of set-off) withrespect to such portion as fully as if such Lender were the direct holder ofsuch portion.

 

(b)           TheCompany hereby grants to the Lenders, a lien, security interest, and right ofsetoff as security for all liabilities and obligations to the Lenders, whethernow existing or hereafter arising upon and against all deposits, credits,collateral, and property, now or hereafter in the possession, custody,safekeeping or control of the Lenders or any entity under the control of theparent company of any of the Lenders, and their successors and assigns or intransit to any of them.  At any timeafter an Event of Default, without demand or notice, the Lenders may set offthe same or any part thereof and apply the same to any liability or obligationof the Company and any guarantor even though unmatured and regardless of theadequacy of any other collateral securing the Loans.  ANY AND ALL RIGHTS TO REQUIRE THE LENDERS TO EXERCISE THEIRRIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS,PRIOR TO EXERCISING THEIR RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS,CREDITS, OR OTHER PROPERTY OF THE COMPANY, ARE HEREBY KNOWINGLY, VOLUNTARILY,AND IRREVOCABLY WAIVED.

 

## **Section9.7            Table of Contents andSection Headings.**

 

The table ofcontents and the Section and subsection headings herein are intended forconvenience only and shall be ignored in construing this Credit Agreement.

 

## **Section 9.8            Counterparts.**

 

This CreditAgreement may be executed by one or more of the parties to this CreditAgreement on any number of separate counterparts, and all of said counterpartstaken together shall 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 CreditAgreement shall become effective on the date on which all of the parties havesigned a copy hereof (whether the same or different copies) and shall havedelivered the same to the Administrative Agent pursuant to Section 9.2or, in the case of the Lenders, shall have given

 

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to the AdministrativeAgent written, telecopied or telex notice (actually received) at such officethat the same has been signed and mailed to it.

 

## **Section 9.10         Severability.**

 

Any provision ofthis Credit 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 CreditAgreement and the other Credit Documents represent the agreement of theCompany, the Administrative Agent and the Lenders with respect to the subjectmatter hereof, and there are no promises, undertakings, representations orwarranties by the Administrative Agent, the Company or any Lender relative tothe subject matter hereof not expressly set forth or referred to herein ortherein.

 

## **Section 9.12         Governing Law.**

 

This CreditAgreement and, unless otherwise specified therein, each other Credit Documentand the rights and obligations of the parties under this Credit Agreement andsuch other Credit Documents shall be governed by, and construed and interpretedin accordance with, the law of the State of New York applicable tocontracts made and to be performed entirely within such State.

 

## **Section9.13         Consent to Jurisdictionand Service of Process.**

 

The Companyconsents, 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 proceedings arising out of the Credit Agreement, any Note or anyof the other Credit Documents.  TheCompany irrevocably agree that all service of process in any such proceedingsin any such court may be effected by mailing a copy thereof by registered orcertified mail (or any substantially similar form of mail), postage prepaid,return receipt requested, to it at its address set forth in Section 9.2 orat such other address of which the Administrative Agent shall have beennotified pursuant thereto, such service being hereby acknowledged by theCompany to be effective and binding service to the fullest extent permitted byapplicable law.  The Company, theAdministrative Agent and the Lenders irrevocably waive, to the fullest extentpermitted by applicable law, any objection, including, without limitation, anyobjection to the laying of venue or based on the grounds of forum nonconveniens which it may now or hereafter have to the bringing of any suchaction or proceeding in any such jurisdiction. Nothing herein shall affect the right to serve process in any othermanner permitted by law or shall limit the right of any Lender to bringproceedings against the Company in the court of any other jurisdiction.

 

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## **Section9.14         Confidentiality.**

 

The AdministrativeAgent and each of the Lenders agrees that it will use its best efforts not todisclose without the prior consent of the Company (other than to its employees,affiliates, auditors or counsel or to another Lender) any information (the “Information”)with respect to the Company and its Subsidiaries which is furnished pursuant tothis Credit Agreement, any other Credit Document or any documents contemplatedby or referred to herein or therein and which is designated by the Company tothe Lenders in writing as confidential or as to which it is otherwisereasonably clear such information is not public, except that any Lender maydisclose any such Information (a) as has become generally available to thepublic other than by a breach of this Section 9.14, (b) as may berequired or appropriate in any report, statement or testimony submitted to anymunicipal, state or federal regulatory body having or claiming to have jurisdictionover such Lender or to the Federal Reserve Board or the Federal DepositInsurance Corporation or the Office of the Comptroller of the Currency or theNational Association of Insurance Commissioners or similar organizations(whether in the United States or elsewhere) or their successors,(c) as may be required or appropriate in response to any summons orsubpoena or any law, order, regulation or ruling applicable to such Lender,(d) to (i) any prospective Participant or assignee in connection with anycontemplated transfer pursuant to Section 9.6 or (ii) any actual orprospective counterparty (or its advisors) to any swap or derivativetransaction relating to the Company, provided that such prospectivetransferee shall have been made aware of this Section 9.14 and shall haveagreed to be bound by its provisions as if it were a party to this CreditAgreement, (e) to Gold Sheets and other similar bank tradepublications; such information to consist of deal terms and other informationregarding the credit facilities evidenced by this Credit Agreement customarilyfound in such publications and (f) in connection with any suit, action orproceeding for the purpose of defending itself, reducing its liability, orprotecting or exercising any of its claims, rights, remedies or interests underor in connection with the Credit Documents or any Hedging Agreement.

 

## **Section9.15         Acknowledgments.**

 

The Company herebyacknowledges that:

 

(a)           ithas been advised by counsel in the negotiation, execution and delivery of eachCredit Document;

 

(b)           neitherthe Administrative Agent nor any Lender has any fiduciary relationship with orduty to the Company arising out of or in connection with this Credit Agreementand the relationship between the Administrative Agent and Lenders, on one hand,and the Company, on the other hand, in connection herewith is solely that ofdebtor and creditor; and

 

(c)           nojoint venture exists among the Lenders or among the Company and the Lenders.

 

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## **Section9.16         Waivers of Jury Trial.**

 

THE COMPANY, 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.

 

**Section9.17         USA Patriot Act Notice.**

 

Each Lender and the Administrative Agent (for itselfand not on behalf of any Lender) hereby notifies the Company 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 Company, which informationincludes the name and address of the Company and other information that willallow such Lender or the Administrative Agent, as applicable, to identify theCompany in accordance with Act.

 

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IN WITNESSWHEREOF, the parties hereto have caused this Credit Agreement to be dulyexecuted and delivered by its proper and duly authorized officers as of the dayand year first above written.

 

 
| COMPANY: |   |   | IMS HEALTH INCORPORATED**,** |
|----------|--------|--------|------------------------------|
|     |   |   | a Delaware 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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